The Law Society of Upper Canada will be convening an important debate at the next Convocation on Thursday, October 25, 2012. The debate will address the future of articling as the gateway to lawyer licensure in Ontario. As noted on the Law Society website:
The Law Society of Upper Canada will show the articling debate via a public webcast, and will simultaneously host an online discussion on the Articling Task Force Report featuring journalists, lawyers and members of the public. Interested lawyers, paralegals, students and others can also be part of the discussion. For more details, visit the Law Society Gazette.
The Law Society’s Articling Task Force was formed to address the growing number of unplaced articling students, who are faced with mounting law school debt and an uncertain future as lawyers.
In December of 2011, the Law Society’s Articling Task Force released its Final Report, Pathways to the Profession: A Roadmap for the Reform of Lawyer Licensing in Ontario, which posed five options:
1. the status quo (“Option 1”);
2. the status quo with quality assurance improvements (“Option 2”);
3. the replacement of a pre-licensing transition requirement with a post-licensing transition requirement (“Option 3”);
4. a choice of either an articling requirement or a practical legal training course (“PLTC”) requirement (“after law school” model or “during law school” model) (“Option 4”); and
5. only a PLTC requirement (“Option 5”)
The majority calls for a two-tiered licensing process that proposes a new five-year pilot project called Law Practice Program (LPP) to operate concurrently with the traditional articling model. As the majority of the Task Force notes,
While articling would continue to be the route through which most candidates become licensed, the LPP, which would include both a skills-training program and a co-operative work placement, would provide an alternative path to licensing. (at p.2)
The Minority Report dissents and recommends that articling be consigned to the dustbin of legal history:
…we propose that articling be abolished and that all candidates for a lawyer’s license be required to enroll in a comprehensive transitional pre-licensing program – two to three months long – that includes on-line learning and exams assessing core competencies to be a lawyer – including legal knowledge and skills, business, professional and ethical issues. Most new lawyers practise in an employment context where there is supervision, mentoring and training provided by more experienced lawyers. For those new licensees who choose to enter sole practice, we propose rigorous oversight of them by the Law Society in the first few years of practice – through mentoring, supervision and inspection, among other things. In this way, the Law Society’s resources will be directed towards the public interest, by ensuring that the public is protected from inexperienced and incompetent lawyers, but will also facilitate access to justice by allowing more lawyers to obtain a license. It may also result in savings from having fewer lawyers in the discipline process. (at p. 71).
Peter Griffin, as President on behalf of the Advocates’ Society, wants to postpone the debate, stating in a Press Release (Oct 22 2012 PDF) that:
“The Law Society has declined our request to postpone debate and voting on the recommendations in this report so that all lawyers can have the opportunity to read and understand the differing views presented in the majority and minority sections of the report and make their views known to the Benchers of the Law Society,” said Peter Griffin, President of The Advocates’ Society. “We are calling on the Benchers to support a motion postponing debate until December, 2012.”
“In the alternative, The Advocates’ Society calls upon Benchers to support the minority position in the report: the abolition of articling,” Mr. Griffin said. “The Advocates’ Society shares the concerns expressed in the minority report that students who are unable to become licensed through the traditional articling process will be stigmatized. We are concerned by the dramatic 47% increase in licensing fees for new lawyers and the fact that the Law Society cannot demonstrate that articles are teaching law students how to be lawyers. The proposed solution does little to address these problems.”
Unlike the Task Force majority, the Minority Report provides a preliminary cost assessment in its supplementary material.
Reading the cross-section of submissions from individual members, law students, law schools, legal organizations, other law societies, members of the judiciary and government, there is little consensus, except that no one wants to maintain the ‘status quo’.
In my view, the ultimate decision will be driven by one factor: the economics of law, not the law of economics. The legal academy keeps increasing class sizes and opening up new law schools (e.g. Lakehead Faculty of Law now accepting admissions). Law schools and law profs all have skin in the law profession game, but have traditionally focused on the theoretical, at the expense of the practical. I enjoyed my time at Osgoode Hall, but there was only a “Business Law” course, not the “Business of Law” course. I learned about lawyering when I articled at Beard, Winter and about running a practice when I went solo in the mid-’90s. I still relied on the mentorship of great lawyers where I articled: Ken Jull, John Olah, David Beard, Richard Winter, Ken Bialkowski, to name a few.
I learned a considerable amount of substantive law at law school and returned to Osgoode Hall for my Professional LL.M. in Civil Litigation and Dispute Resolution.
Great program, by the way. I highly recommend it.
That said, law schools are in the academic business; increased revenues and operating budgets remain the key factor for churning out new law students. Law firms, especially small and mid-sized ones, as well as solo practitioners are facing financial pressure on their bottom-lines — scaling back on hiring, reducing salaries, or, as Andrew Langille points out, paying articling students less than minimum wage or nothing at all as law interns.
Whether the current state of articling is a function of a bear market that will eventually rebound, or is more of a systemic problem, is not easily answered. Yet, we, as members of a self-regulating profession, all need to know whether our future colleagues will have the benefit of practical training to become competent and ethical members of our profession. Something’s gotta give before the Competition Bureau decides its time to step in and take over the regulation of lawyers for the protection of the public.
I don’t have any predictions, except that the ‘precogs’ will likely be working into overtime, unless the Law Society’s Treasurer, Tom Conway, ends the debate and calls for a vote.