Please note that this issue went to press shortly after the Nov. 22 decision was released, and the content of this article addresses the background and lead-up to the decision. Please check back for up-to-date information regarding the decision.
LSUC Articling Task Force Decision Deferred Until Nov. 22
The anticipated release of the Final Report of the Law Society of Upper Canada’s Articling Task Force came on October 15. The Law Society’s Convocation (decision making body) was scheduled to debate and vote on the report on October 25, leaving just ten days for members of the legal community to absorb the report and provide comments. There was a lot of buzz around the October 25 meeting, which was streamed live online and presented publically at the law school.
In the Final Report, nine of the thirteen members of the Articling Task Force supported a proposal to maintain articling and develop an alternative pathway to licensing. Four members supported abolishing articling and replacing it with a two to three month compulsory online training program.
Majority
The majority’s proposal involves two elements: maintaining articling while enhancing its consistency and transparency and creating an alternative pathway to licensing through a Law Practice Program (LPP). These changes would be part of a five-year pilot program that would be evaluated on an ongoing basis.
Improvements to articling
The Law Society is under pressure to demonstrate the fairness of their licensing process. In a recent article in Toronto Life magazine, articling was described as a “rodeo” because peoples’ experiences with it are so unpredictable and varied. In order to improve the consistency and transparency of articling, the majority recommends new documentation and assessment requirements. For example, articling Principals and students would have to report the amount of time spent on certain skills and activities, and would both complete evaluations of the articling process midway through the term and at the end.
In addition, the Law Society will administer an assessment that all licensing candidates must complete after their training. The assessment would cost $1320 and would test skills such as interviewing clients, drafting opinion letters and affidavits, conducting a negotiation, and analysing ethical problems. The majority report contemplates offering the assessment once a year in Toronto and Ottawa over a period of 2 to 4 weeks.
Law Practice Program
The LPP would be delivered by a third party and would involve four months of courses followed by a four month paid or unpaid co-op. The majority foresees the LPP being offered in Toronto and Ottawa only, and expects about 400 graduates to enrol in the LPP in the 2014-2015 year. The minority report is sceptical about the availability of co-op positions, and noted that the Task Force was not provided with any evidence that enough positions can be found. Dean Moran believes that most positions would be unpaid.
Based on a similar program in Australia, the LPP is estimated to cost $7000. The majority report proposes that this cost be shared among all graduates – including those who obtain articling positions. The estimated total cost of the licensing process in 2014-2015 includes the LPP ($1400 per person when shared among all graduates), regular licensing fees ($2950) and the new assessment ($1320) for a total of $5,670. Big law firms that hire articling students would likely pay part of these costs, while government and smaller firms would not. This cost estimate does not include the cost of relocation for students who live outside of Ottawa and Toronto or who have to move to another city for their co-op placement.
The report did not provide many details about the content of the LPP course. According to Dean Moran, the classroom component will be in the form of simulated experiential learning and will focus more on small firm management and practice areas where lawyers typically face the most discipline, like real estate and family law.
The majority report left open the possibility for the integration of experiential learning into the third year of law school, as partial fulfillment of the transitional training requirement. Lakehead’s new law school is looking to pursue this option. There are already considerable experiential learning opportunities at both Toronto law schools. Osgoode, however, goes further than U of T by requiring students to do a clinical placement, experiential learning course, or intensive program in order to graduate. Placing more students in clinical positions during law school contributes to the Law Society’s goal of ensuring entry-level competence of new licensees. The entire taskforce agreed that experiential learning deserves more attention, regardless of whether articling is abolished or not.
Minority
The minority acknowledged that they agree with the majority’s concerns about articling. Their disagreement is on how to move forward. The minority position points out that it was in 1972 that the Law Society’s McKinnon Task Force conducted the last full review of articling. They would abolish articling and replace it with a short, comprehensive, online course. This proposal also calls for more rigorous oversight of new licensees who become sole practitioners. In the minority’s opinion, this fulfills the Law Society’s twin commitments to competency and fairness in its licensing process. The minority also says its approach will better address equity and access to justice.
The minority strongly supports Osgoode’s practical training requirement, and believes that there is no incentive for law schools to follow Osgoode’s lead as long as the Law Society looks after practical training through articling or the LPP.
High law school enrollment is a problem
Both reports suggested that law schools have contributed to the articling crisis. The majority report emphasized that the Law Society cannot control the number of people who ask for licensing, nor the high debt loads those people have. The majority recommended: (1) law schools “examine tuition costs more closely, as well as the numbers of students they admit and graduate”; (2) experiential training should play an increasingly important role in curriculums; and (3) legal organizations (including law schools) should more clearly communicate the risks and challenges of attending law school in a changing legal environment.
Ontario law students may be wary of the impact of more law students in the articling market. Lakehead University’s law school will accept its first 55 students in September 2013. The Université de Montréal’s common law program was accredited this summer and graduates are now automatically eligible to apply for a license from any law society in Canada. Other Ontario universities, including Ryerson, have sought approval from the provincial government to establish new law schools.
Although law schools are independent from law societies, it is reasonable to expect that they have a responsibility to the profession and to current and future students to address concerns about articling shortages.
LSUC and student perspectives
On October 25 the members of the task force outlined reasons behind the two positions. The majority emphasized that no permanent decisions were being taken; the pilot program will study articling further with the goal of reaching an optimal solution. Wendy Matheson of the majority argued that the current system is already two-tiered because it distinguishes between those who obtain articling and those who are excluded. Other members recognized that there could be some stigmatization of LPP graduates, but did not feel that this was a fatal concern.
The minority said that five more years would not give rise to positive changes. Paul Schabas of the minority recognized that while articling is part of the legal culture in Ontario times have changed and an all-new approach is required in the 21st century. The minority believes that their approach will better ensure fairness, measurable results, and access to justice, which are particularly relevant to equality-seeking groups, who are disproportionately affected by the shortage in articling positions.
At the town hall hosted by Dean Moran, students were aware that the articling crisis may translate into underemployment after licensure. While neither the law schools nor the Law Society are responsible to ensure that new lawyers can find work after, this should be a concern for all groups since law students have little control over the legal market and system we are part of – aside from the decision to enter or leave it.
