Why the Law Society of Upper Canada should create a new Law Practice Program as an alternative to articling
In mid-October, the Law Society’s Articling Task Force issued its final report. It should be required reading for all Ontario lawyers and law students. The recommendations, assuming implemented, will have far-reaching implications for access to the legal profession and for how we prepare the next generation of lawyers for practice in Ontario. Hopefully the result will also be an increased ability for the public to access lawyers in areas where there is currently a shortage.
I spent a lot of time reading the various Task Force reports and the submissions to the Task Force (including the submissions that came after the final report was issued), as well as consulting with key people and organizations. I’m now convinced that Convocation should approve the position of the majority on the Task Force which includes introducing a new Law Practice Program alongside articling.
For anyone who still doesn’t think that we have serious problems when it comes to the current licensing system, I suggest that you listen to the wrenching personal experiences of heavily indebted candidates for licensing who have searched far and wide for an articling position. Some had success only after a few very stressful years for them and their families, and some are still searching or have given up. As Doug Chan writes in his thoughtful submission to the Task Force:
“In short, I love being a lawyer. I feel like it is the only profession that was meant for me. At the same time, I almost gave up on that dream. I lived through many harrowing months desperately searching for an articling job. Not only did I search the job ads, but I made hundreds of cold calls in hopes of identifying interest. The constant rejection was difficult. … It would be a shame for society to miss out on a bright young legal mind, simply because he or she could not get past the articling requirement.”
You can find Doug’s submission as well as all the other submissions here. (A big thank you to Nicole Walton, an awesome CLA volunteer who did a great job of helping me review all of the submissions).
The reality is that our previous failed attempts to address the issues associated with articling means that we’ve failed Doug and other law graduates who would be great lawyers, but who almost didn’t find articles, are still searching, or have given up.
The good news is that the Articling Task Force has stepped up to the plate and is dealing with the issue head on. In keeping with legal tradition, the Task Force is split, with majority and minority positions. But although their recommendations differ significantly, both groups recognize that the status quo is not acceptable. As I’ve been writing since 2008, there are a number of problems with the licensing process. One of the greatest challenges is that there are simply not enough articling positions to meet the demand. It is estimated that the percentage of candidates in the Law Society’s licensing process without an articling position has now hit a high of 15% and there is no sign that this trend will end anytime soon. The entire Task Force recognizes that it is both unfair and an unreasonable barrier to entry to the profession that otherwise qualified candidates cannot find an articling position and, as result, cannot get licensed.
The Majority and Minority Recommendations (in brief)
The majority of the members on the Task Force recommend that Convocation approve a five year pilot project that would allow for both articling and a new Law Practice Program (LPP). In other words, a LPP would be introduced as an alternative path to licensing. It would include a four month skills-training program and a four month co-op work placement. All candidates in the licensing program would be required to successfully complete an assessment to ensure that they meet core competencies for entry-level practice. The costs of the LPP would be equalized among all licensing candidates with the estimated licensing cost increasing from $2,950 to $5,670.
A minority on the Task Force strongly disagreed with a two-tiered approach on the basis that it is inequitable, cumbersome, and will do little to increase entry-level competence of newly licensed lawyers. Their most significant objection is that the creation of an LPP along articling would create two streams. One stream will consist of articling students who are paid a salary to article; the other will consist of students who were unpaid for the eight months of the course and co-op placement. In their view, “…it is inevitable that the LPP graduates will be stigmatized by the professions on the basis that these are candidates who couldn’t find articles and are therefore somewhat less qualified.” As a result, the minority recommended abolishing articling altogether and replacing it with a two- to three-month long pre-licensing program focused on the core competencies needed to be a lawyer. New lawyers who chose to practice on their own would be subject to rigorous oversight in their first few years of practice.
So where do I stand?
First, let’s be clear: THERE IS NO PERFECT SOLUTION. Many of the problems associated with articling reflect broader challenges that the legal profession faces and that changes to the licensing system alone cannot solve. These include rapid changes in how law is practiced, a disconnect between what is taught in law school and the practice of law, equity and diversity issues in the profession, and offshore law schools that mass produce law graduates from Canada who then seek to enter the legal profession through Ontario’s licensing system.
Nonetheless, I am convinced that introducing an LPP in addition to articling is the best approach at the present time to meeting the Law Society’s obligation to ensure entry-level competence through a fair licensing system. A properly designed LPP will also enable candidates to gain experience in an area that reflects the kind of law that they wish to practice while increasing the number of lawyers practicing in areas where there is an unmet demand by the public for legal services.
Better match of demand and supply
Not only does an LPP ensure that all qualified candidates have a path to licensing, it may also address the gap in access to justice by providing specific training to candidates who wish to work in sole- and small-practice environments and underserved areas of the law.
I’m convinced that there is a demand from law students and foreign-trained lawyers for opportunities to practice in these areas. I regularly meet with law students who are not interested in practicing with a medium to large corporate law firm or government (where the bulk of the articling positions tend to be), but are instead interested in working in public interest law, criminal defence, family law, or working at a small law firm. These are all areas where there is a shortage of lawyers and the profession should be assisting candidates to pursue careers in these areas. However, the number of available articling positions in these areas is very small (despite the fact that most lawyers end up working in a small firm environment). As a result, many of the students I meet with can’t find articling positions or end up taking a job where the training they receive is not particularly useful for the area that they want to practice.
While the financial implications for those enrolled in the LPP should not be underestimated (despite equalization of the cost, the co-op placements are likely to be unpaid), I think many candidates for licensing would choose this route as it will better prepare them for an area of practice where they hope to spend their career. Also, as the majority notes in their report, the significant debt loads that students incur as a result of high law school tuition fees is entirely beyond the control of the Law Society. Finally, it is certainly much more fair that candidates who would not otherwise be able to get licensed because of a lack of articling positions would have a pathway to licensing through the LPP.
LPP can and should be top-notch
While I am very sympathetic to the concerns of equity-seeking groups and believe that the legal profession should be doing a lot more to promote diversity in the profession, I don’t accept the minority position that someone coming out of an LPP would be stigmatized. I think it is possible to design a top-notch LPP that wouldn’t be seen as second rate.
As noted above, I believe that a properly designed LPP can offer a better, more tailored experience. An LPP that emphasizes practical skills and provides co-op placements in areas of practice where there is currently a lack of articling positions and a need for lawyers would be highly desirable for many students and employers. It could also focus on providing assistance to candidates who are likely to face greater employment challenges – for example, foreign trained lawyers coming from countries where the practice of law is extremely different.
Benefit of a Five Year Pilot
I like the fact that the majority is recommending a five year pilot. The practice of law is undergoing dramatic changes and it is very hard to predict what the practice of law will look like in the future. If you don’t believe me, read Jordan Furlong’s somewhat apocalyptic blog posts here.
I’m also hopeful that the teaching of law will change dramatically in the next five years as well. Perhaps (dare to dream?), neither a LPP nor articling will be necessary as law schools will incorporate skills development and mandatory experiential learning into their programs. It goes without saying that this would result in students much better prepared on graduation for entry-level practice.
This isn’t just a pipe dream. The majority on the Task Force states that there is nothing to stop a law school that incorporates skill-based learning into its curriculum from satisfying part or all of the transitional training requirements (see paragraph 120 of the Task Force report). A number of law schools are already going in this direction. Osgoode has already introduced mandatory experiential learning into its curriculum. See a great recent post by Osgoode Dean Lorne Sossin here.
Time will tell if other schools follow Osgoode’s lead. As the minority report puts it, while most students appear to be looking for more practical training from law school, much of the resistance is from law school or faculty “who see their role as to only teach academic courses, and not to engage in any practical training”.
Not only is this is a very outdated view, it certainly does nothing to help prepare students for the practice of law. As Tony Wagner of Harvard puts it “The world no longer cares about what you know; the world only cares about what you can do with what you know.” (I found the quote in Tom Friedman’s column in Sunday's New York Times here)
[As an aside, I teach a graduate course on global civil society at UofT’s Munk School of Global Affairs. In addition to a course paper, student have to create a global civil society actor such as an NGO for which they create a strategic plan and a website. It is amazing to see the students apply the theory in a very practical way. And speaking from experience, these skills are far more useful in the real world than simply knowing the theory.]
Concerns about eliminating articling
I have a number of concerns about eliminating articling.
First, I think that this approach is much more likely to lead to two tiers of lawyers. While there would only be one stream at the entry point as all candidates would go through the same transitional training system, there would still be two streams at the end: One stream of licensees who are able to find jobs and one stream of licensees who cannot. Further, I don’t understand how eliminating articling would change the hiring practices of firms or address broader concerns about equity and diversity in the profession. Law firms would still hire the same people as they do now (with likely more emphasis on hiring law students in their second year of law). By contrast, the introduction of an LPP would ensure that all candidates have a foot in the door through a work placement or an articling position.
Second, there is a lack of information about the impact of eliminating articling on the number of jobs that will be available to new licensees. It is quite likely that law firms and government will hire fewer new licensees because of the implications of having to hire someone for a full-time position as opposed to hiring an articling student.
Third, it is not clear what the impact of eliminating articling would have on the ability of Ontario lawyers to transfer relatively easily to other provinces. The ability to move easily between jurisdictions is extremely important. A number of law societies made submissions to the Task Force expressing concern about the impact of any significant changes to Ontario’s licensing system on national mobility. Before eliminating articling, more consultation is needed with law societies and the Federation of Law Societies (which is in the process of developing national admission standards for use by all law societies).
Finally, based on a review of the submissions, it is clear that a majority in the profession believe that articling continues to serve a useful function. While this certainly should not be a determining factor, it is something that Convocation has to consider.
A few caveats about a LPP
I have a few concerns about completely outsourcing the LPP to a third party. While I’m sure there are third parties (such as community colleges) that have great experience in providing experiential type learning, anyone who develops the LPP will need to have a very strong understanding of the practice of law in a variety of contexts and the skills that are necessary. This will require significant input from practicing lawyers. Also, I am concerned about the ability of a third party (or anyone for that matter) to find sufficient co-op placements especially if Ontario continues to be flooded with candidates who received a degree abroad but wish to be licensed here. Finally, I am concerned that the cost for licensing candidates including the evaluation system will end up being more than the estimated cost. These are issues to watch closely should a LPP be introduced.
Conclusion
The bottom line is that there are no easy answers to addressing the issues associated with the current licensing system. And I really do sympathize with students who are very concerned about how any changes will impact them. They really are the guinea pigs. However, the status quo, where so many candidates can never find articles and can therefore never be called to the bar, is not acceptable. I believe the introduction of an LPP is the best solution right now.
Tune in this Thursday!
In a great initiative, the Law Society will once again be live-streaming next Thursday’s Convocation debate on their website. I certainly hope webcasting of Convocation debates becomes the norm. A few panelists, myself included, will once again be in a “war room” at the Law Society and live tweeting the debate. Hopefully, we’ll have large numbers of lawyers and law students tuning in and tweeting.
Join us! You can watch the webcast here. If you want to join the twitter conversation, the hashtag is #articling and the Law Society’s twitter handle is: @LawSocietyLSUC. And you can follow me and my esteemed tweeting colleagues (many are much funnier than you might expect). Our twitter handles: @cathmckenna, @LeeAkazaki, @dougferguson9, @OmarHaRedeye, @JKal, @MEKowalski, @APribetic and @wiselaw.