Law Society of Upper Canada benchers set the stage for a D-Day on articling this November after proponents and opponents of its complete abolition laid out their cases at last week’s Convocation.
Overwhelmed by the response to the articling task force’s 100-page report, benchers agreed to defer the debate and decision on it to their next meeting on Nov. 22. “Ten days does not permit stakeholders enough time to fully appreciate,” Virginia MacLean told fellow benchers at Convocation on Oct. 25.
Benchers from the two distinct camps on the divided task force had the chance, however, to present their proposals.
Raj Anand spoke on behalf of the task force’s majority that proposed a five-year pilot for an eight-month legal practice program that would absorb the overflow of licensing candidates unable to secure articles. He anticipates that about one-fifth, or 400 out of 2,000 licensee applicants, would take the course in its first year.
“We recognize that there is no perfect solution,” said Anand, who emphasized that all members of the task force agreed that the status quo was unacceptable. “This has led to our recommendation to provide optional pathways to licensing and thereby eliminate the unfair situation in which many candidates cannot demonstrate their ability to meet competency standards.”
The majority option, he said, allows the profession to retain and enhance the “widely accepted experiential process” of articling while at the same time “testing it openly and transparently in a manner that has not been done before.”
Candidates from both streams would receive the same assessments at the end of the process, allowing for “evidence-based conclusions at the end of the pilot project whether one or both of the two streams of qualification should continue,” according to Anand.
But Bencher Jacqueline Horvat, speaking for the four dissenting members of the task force, said benchers should bite the bullet and scrap articling altogether.
“It’s human nature to react this way. . . . The first question every one of us will ask of a new lawyer who comes to us looking for a job is where did you article,” she said. “In our view, no one should be consigned to a second-class status by a licensing process.”
The majority proposal calls for an equalization payment of $1,320 by all licensing candidates to cover the cost of those going through the legal practice program, but Horvat said there would still be inequity since many articling students are paid for their work and may even have their licensing fees covered by their employers. The minority group’s alternative calls for a two- to three-month intensive practical program for all applicants plus post-call mentoring and assessment to ensure competence.
Bencher Wendy Matheson, another member of the task force majority, dismissed fears about a two-tier system.
“The proposal is to study two pathways to licensing and to evaluate and compare them. . . . As soon as you study more than one pathway, whatever you do will be described as two-tier,” she said.
But Bencher Peter Wardle, who supported the minority proposal on the task force, said the length of the study, combined with the nebulous character of articling, would help entrench the two-stream approach no matter what the results of the pilot are.
“Once we build it, we will find it very difficult to tear it down,” he said of the proposed law practice program.
Despite Convocation’s decision to defer the debate on articling, a vigorous public discussion took place simultaneously online. Lawyers, law students, journalists, and others weighed in with their thoughts on the issues raised by the benchers. Some agreed that the profession should take time to consider the report while others argued it was time for a decision.
Catherine McKenna, executive director of Canadian Lawyers Abroad, tweeted: “While @LawSocietyLSUC can’t delay forever, good decision to delay a decision on #articling until November.”
But Mitch Kowalski, a Toronto lawyer and author, disagreed in a tweet. “So Bencher Raj [Anand] says that many stakeholders were part of the preparation of the report — and now stakeholders want yet another kick at the can? . . . Benchers were elected to make decisions and govern — they should do so.”
— With files from Heather Gardiner
