In 2008, the Law Society of Upper Canada looked at the future of articling. The problem was clear: there was a significant shortage of articling positions and a disproportionate number of the candidates unable to find articles were from equity-seeking groups.
Despite a task force, consultations, and submissions, the LSUC decided not to do very much. The majority of respondents overwhelmingly rejected the idea of abolishing articles.
There were some small efforts to try to increase the number of positions and some exemptions from articling for internationally trained lawyers. However, there was clearly a hope that the shortage of articling positions would decline and that the legal profession would step up to plate.
Three years later, the problem is significantly worse. The rate of unplaced articling candidates has jumped to 12.1 per cent in 2011 from 5.8 per cent in 2008. Once again, equity-seeking groups are disproportionately left out.
With new law schools starting up, increased enrolment at existing institutions, and more foreign-trained law graduates and lawyers looking for articles, the problem is clearly structural.
So the law society has yet again established a task force that recently issued a consultation report. However, this time the task force is no longer willing to treat articling as the sacred cow of the licensing process.
It’s therefore surprising that the first two of the five options proposed in the consultation report would keep articles. Under the first option, nothing would change except students entering law school would be warned that there’s no guarantee of an articling placement.
The second option would add some form of quality assurance to the articling experience. Both of these options should be non-starters.
First, they maintain articling as an unreasonable barrier to entry to the profession. While the report suggests that these options let the market decide, it’s not actually the real market of consumers but rather an artificial one governed by lawyers.
The barrier to entry isn’t based on an objective standard but rather on whether a lawyer or firm deems someone to be a good fit to article.
The law society has clarified “that the problem of unplaced candidates cannot be dismissed as ‘the market weeding out weak candidates.’” This makes articling very vulnerable to attack from a regulatory perspective.
At the same time, neither of these two options is fair. For a profession committed to protecting the public interest and advancing the cause of justice, it’s a big problem that a disproportionate number of the candidates who can’t obtain articling positions are aboriginal, from racialized communities, francophone, and mature students.
Finally, the fact that small firms and sole practices no longer play a significant part in the articling system is exacerbating the crisis in access to justice. Articling isn’t training lawyers who will act for average Canadians.
It’s surprising, therefore, that abolishing articles and simply having licensing exams, as is the practice in the United States, isn’t included as an option.
Having a properly designed standardized exam that assesses competence to practise law wouldn’t be an unreasonable barrier to entry nor would it be unfair.
The task force’s rationale for excluding this option is set out in one short paragraph that notes that this option wouldn’t be in keeping with the law society’s mandate and that transitional training is “valuable and necessary.”
However, the report provides no evidence that the U.S. system isn’t adequately preparing new lawyers. The task force should have provided hard evidence to highlight the problem with the U.S. system or it should have included this option for discussion.
The good news is that the task force sets out three creative options that actually tackle the problem. The third option would replace articling with a post-licensing transition requirement.
Under that arrangement, lawyers working in a small- or sole-firm setting would have to do transitional training on the basis that these are higher-risk practice structures.
The fourth option would provide the choice of either articling or a practical legal training course. The final option would simply involve a practical course.
Of these options, the fourth is the most compelling. Not only does it 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.
Under this option, articling would continue after law school with clear and enforceable standards. By contrast, the practical legal training course would begin either after law school through a third-party provider or through a practical program during the third year.
The emphasis would be on skills and ethics, as well as the business of practising law. Combined with a mentoring component, this stream is likely better able to prepare candidates for certain kinds of practices, such as sole- and small-firm practice or public interest law, than articling does.
The report rightly points out that for a post-law school course, cost is a consideration as students would have to pay for it.
Nevertheless, additional debt is likely preferable than being unable to find articles and never qualifying to practise. Interestingly, the report looks at the experience of Victoria, Australia, which has a dual system for licensing.
It found that not only was there no stigma associated with students who took the practical course rather than articling, many law firms opted to put their new hires through the program rather than train them themselves. This option could one day replace articling altogether.
The question now is how the law profession will respond to the consultations on articling this time. Will most lawyers continue to cling to articling and refuse to consider other options?
If so, not only will an unfair system continue, there’s a good chance we’ll lose our ability to regulate ourselves. On the other hand, if lawyers decide to consider innovative alternatives, we’ll end up with a more inclusive profession that’s better trained and able to serve the public.
There’s a lot at stake. Make sure you make your views known. Make your comments to the law society by March 15.
For more, see
"Articling crisis set to grow."
Catherine McKenna is the executive director of Canadian Lawyers Abroad, a not-for-profit organization that supports the rule of law, good governance, and human rights work in the developing world and Canada's North. Through the organization's student program, she works with law students from across the country.
