Osgoode Hall Law School

Dean Sossin's Blog


Should Articling be Abolished?

October 26, 2010

On Saturday, October 23, 2010, I had the privilege of speaking to the inaugural conference on Canadian Clinical Legal Education, “The Future of Canadian Legal Education: Let’s Start the Debate”. I was asked to address the question: Should Articling be Abolished?

This is a national issue but with significant local variation. Some of the proposed remedies to problems that have arisen with articling in Ontario, for example, may seem like solutions in search of a problem in B.C.. That said, there are some cross-cutting anxieties that apply wherever articling is a required element of the journey between the study of law and the practice of law. Four such anxieties spring to mind, and each individually would justify new ideas – cumulatively, they speak to the urgency of change.

The first anxiety is related to the market. Is it appropriate to have as a gatekeeper for a publicly regulated profession, a process that ebbs and flows according the dictates of the market? In other words, whether or not someone is able to secure articles may have little to do with the quality of their skills, or what they might bring to the profession – it turns on their ability to get a job. When jobs are plentiful, a rising tide may lift all boats, and in a drought, even highly qualified law students may fall through the cracks.

This market reality leads to the second, and in a sense, broader anxiety, relating to the absence of merit in this gatekeeping role. Every other aspect of a lawyer’s journey, from admission to law school, to completing a law degree to passing licensing exams is merit-based. In all of these contexts, whether someone advances or not depends on a fair and substantive assessment of their abilities (though, of course, that process could be more fair and more substantive). Articling simply does not live up to that standard (nor does it try to). There undoubtedly are articling students who succeed precisely because of a merit based process, but there is no similar correlation between those who do not secure articles and those who are not qualified for, or deserving of a pathway to the legal profession. Hence the case, in my view, for augmenting articling with other pathways to practice that ensure equivalent skill sets, merit-based assessments and innovative professional education.

The third anxiety flows from the second, and has to do with who is likely not to obtain articling opportunities. That group is over-represented by individuals from under-represented groups in the profession, and equity seeking groups in Canadian society.

The fourth anxiety has to do with articling itself. Sometimes, it lives up to the ideals of hands-on, high-quality learning, exposure to mentorship, professionalism and bringing theory to action. Other times, it does not. Articling as an educational program lacks meaningful supervision, or any kind of opportunity to learn or reflect on legal practice. Apart from ensuring there is a qualified principal who is accountable for the articling student, and responding to complaints, the Law Societies tend to perform little or no oversight or quality assurance.

These anxieties are not new. The legal community has worried about articling pretty much for as long as there has been articling. The Mackinnon Report recommended abolishing articling in 1974 and the Epstein report called for reinvigorating articling in 1990 – in 2008, the LSUC Licensing and Accreditation Task Force reported to Convocation and took seriously the anxieties about the articling program, but stopped short of recommending any drastic change (though the tweaks recommended, including a bridging program for internationally trained lawyers, represented in my view steps in a constructive direction).

While the anxieties are not new, the environment within which we’re discussing that familiar anxiety, however, is, in at least the following respects:

  • Legal education is undergoing an experiential turn – and the influence of the 2008 Carnegie Report has coincided with (and been a catalyst for) a sharp increase in clinical and intensive programs across the country, all of which raises the question of whether articling is or may soon be redundant if its goal is to provide a structured and practical learning environment about the realities of legal practice.
  • Compulsory Continuing Professional Development (CPD) is already here for junior lawyers, and lifelong learning will shortly be the norm for all lawyers in several provinces including Ontario. Rather than the model where once you cross a magical educational threshold like a law degree or call to the bar, you then move from an educational to a purely practical context. From now on, it will be all learning, all the time.
  • Demand for entry into the legal profession, particularly in Ontario, seems certain to outpace available articling positions. This was predicted with some precision in 2008 and there have been added pressures since then, such as the significant increase in the size of the University of Ottawa’s program.
  • Economic pressures on law firms, and new developments like outsourcing and flat-fee as opposed to hourly billing, make a dramatic rise in the supply of articling positions unlikely.

Those who support articling want law students exposed to practice settings, and to learn drafting, analytic, interpersonal, fiduciary and professional skills across a wide range of practice settings, and mentorship. They want students to article so as to see first-hand the best aspirations of the profession; and to embrace legal ethics and professionalism.

Articling may be one way to achieve these various goals but it certainly is not the only way. And over time, I believe we should see articling as one of several possible routes to accomplish this substantive educational and regulatory goal, and that the other routes should be high quality, accessible, merit based and achieve goals equivalent to if not superior to articling. Doing so would bring Canada in line with other common law jurisdictions, most of which include merit-based post graduate practical legal training.

  • One example is the U.K. Bar Professional Training Course, which is a one-year full time or two year part time practical training course for Barristers, and includes a mixture of simulations, drafting and advocacy skills training, courses on legal ethics, evidence, civil and criminal litigation. 11 regional providers are listed in the most recent publication of the Bar Council.
  • New Zealand similarly has a Professional Legal Studies course offered at two different providers, each with several regional locations, which LL.B. graduates must take. The course is either 13 weeks on site or 19 weeks, including 15.5 weeks online and 3.5 weeks on site. Skills and competencies include drafting, advocacy, trial prep, mediation, arbitration, negotiation and of course professional practice and responsibility.
  • Australia is characterized by a variety of mechanisms for ensuring law graduates have the practical training required to be licensed for legal practice. The Leo Cussen Institute in the state of Victoria, Australia, for example, provides a rigorous program six months of practical training through simulated office environments, again offered on-site or on-line.
  • Washington & Lee Law School in the U.S. has modified its 3rd year program in the wake of the Carnegie Report to consist entirely of simulated and structured practical legal training.

One does not need to look across the border for innovations. The Internationally Trained Lawyers Program (ITL), an initiative of the Faculty of Law, University of Toronto funded on a pilot basis by the Ministry of Citizenship, serves as a bridge for internationally trained lawyers, and on-site courses taught on an intensive basis, including cultural transition skills, and a placement aspect to combine classroom and office based education.

Whether a stand-alone centre like the Leo Cussen Institute, a law school based initiative like the ITL program, or a law society or Bar-based initiative, providing a structured but simulated environment for this educational experience is entirely consistent with the goals just described, and with the goals of articling per se. Why shouldn’t a graduate who seeks a high quality practical course of training which meets and in many cases exceeds the quality of the articling experience, have the choice to pursue this as an alternative to articles?

In this sense, articling should not only be retained but strengthened, and perhaps supplemented by a more structured program for a short intensive period or intermittently on a part-time basis where necessary to deal with the lack of quality assurance and uneven experiences of articling students. Further, firms and government offices who provide articles but lack the capacity to offer rigorous practical legal training could work with this kind of institute to enhance the educational quality of their programs and this kind of institute could work with firms and government to ensure its simulated problems are as real as possible.

So, rather than one-size-fits-all requirement of articling, a set of alternatives and hybrids could (and will) emerge, with the Law Society working in partnership with other public interest oriented bodies, where University based law schools, legal organizations like the Canadian Bar Association, Advocates Society, or others.

To conclude, for the reasons I sketched briefly above, articling should stay and be rejuvenated but the requirement should go, and alternatives to articling developed. In this fashion, all the benefits of articling are retained, and I would suggest enhanced, while the deficiencies of articling are largely dealt with. Over time, law graduates will vote with their feet. There may be a challenge with stigma at the outset and for a brief transitional phase. While articling may be seen as desirable because it is paid work, and a first rung on the career ladder, over time the benefits of other pathways, which might take less time, which might be connected with values based incentives and bursaries (where, for example, students pursue their practical training in underserved areas of the country/province), and which might have the rigor and/or flexibility articling lacks (for example, to engage in distance learning), will become apparent. A rite of passage to legal practice, in other words, will evolve into rights of passage.

From the student’s perspective, more choice and more variation would allow for more opportunities, higher quality opportunities and more successful opportunities; for the providers, and I would hope law schools collaborate and offer leadership in this regard, it represents a terrific opportunity to innovate and to work as partners with regulators and other stakeholders in the legal community, and for the regulator, it provides better education for lawyers and better quality assurance for clients and for the public interest.

Finally, if this vision of articling as one of a variety of pathways to bridge legal study and legal practice is pursued, it also have the important ancillary benefit of bringing together the law societies, law schools, law foundations and others to work together to realize shared educational goals. Educating a new generation of great lawyers will and should be a shared enterprise.

So, my hope is that articling flourishes in Canada, but that the articling requirement becomes a relic of the past!

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16 to “Should Articling be Abolished?”

  1. Padraic says:

    Great post! I am glad to see someone in the academy pushing the Law Society on this issue.

  2. StudentatLaw says:

    Sadly, the members of the law society (practicing lawyers) have a very strong incentive to not change the status quo. The less new lawyers there are in Ontario, the better things are for those in practice right now.

    • Lorne Sossin says:

      I hope this is not the case, and if it is, there is a whole new generation of lawyers about to arrive on the scene who may well want to be part of a more modern, more progressive profession!

  3. Noel Semple says:

    Great post. I would only add that looking at articling from the point of view of individual consumers of legal services reveals another problem. There is great unmet demand for lawyers serving individuals, e.g. criminal, immigration, family, estates lawyers. Many Ontarians need but cannot afford legal help in these areas, and increasing supply would help address this problem.

    But the articling system pushes students toward practice for business, because that’s where the articling positions are. Check out this list of Toronto firms participating in the OCI process whereby students are hired in 2d year: http://twitdoc.com/c/h53s5g. Out of the 51 firms listed, only a handful primarily serve individuals.

    I went through that OCI meat-grinder myself, and despite my interest in family law landed at a large firm with a business/institutional clientele. The firm’s family practice had been steadily dwindling and was finally axed during my time there.

    The articling requirement is both a barrier to practice for many law students who might otherwise serve needy individuals and a channel which diverts law students toward business-oriented practice. Dean Sossin’s proposal to preserve articling as one option among many pathways into law practice would appear to respond to these concerns.

  4. Stuck in my office says:

    One of the things that law schools and the law society need to be more open about is the actual statistics on articling placements. Law schools have an incentive (and do) hide and massage the statistics on articling placement rate to incoming students. This makes sense and they should not be fully blamed as they are self-interested in getting the best students to go to their schools. As well the law schools data has a problem of self-selection since they cannot force individuals to reveal if they have a position or not. This ends up having the impact of underrepresentation of those without positions. LSUC only publishes data on number of individuals seeking placements by the time their graduating class is called. There needs to be full and transparent data on placement rates of students going into third year, at graduation and at periodic intervals afterwards.

  5. Laya says:

    Thanks for the post. The big firm system which hires first year summer students, who become second year summer students, who become articling students, means that your whole legal career can be determined by three exams taken three months into law school.

    If we need articling at all, we need it with opportunities for students who aren’t Bay Street cannon fodder, but who still have something to contribute to the profession.

    I don’t need a fancy salary, and I can’t work galley slave hours. I would be willing to article on contingency, or on a percentage of hourly billings. I even have some really good class action ideas to bring to anyone who will hire me.

    If I don’t find articles, I can’t be called to the bar. Can we frame that as an access to justice issue?

  6. Osgoode Student says:

    Here, here!
    Thank you Dean Sossin for your unbiased insight.

  7. James Stribopoulos says:

    Thank you for this very insightful post.

    I think some alternative, beyond the traditional articling year, is absolutely essential. As some of the comments suggest, the current model is pushing students toward the larger firms. It is those firms that have the resources to devote to articling. In criminal law, for example, as the years pass, there are fewer and fewer articling jobs to be had. In fact, in my experience, there are many more qualified students keenly interested in practicing criminal law who must settle for articles outside that field simply for lack of sufficient opportunities. Although some of these students might eventually make their way to criminal practice, many won’t. Also, we should worry about students who article in a general practice firms, that typically do everything but criminal law, then transitioning into this highly specialized field without adequate training and mentorship. The articling obstacle makes me worry quite seriously about the future of the criminal bar. No doubt, this very same concern would operate with respect to other areas of practice that are not well serviced by the larger firm (i.e. family law).

    In addition, I think we cannot forget some of the economic realities that are exerting considerable pressure on student choices. For example, if the alternatives to articling require enrolment in a skills based programs and the payment of further tuition, then students already awash in debt may still opt for articles. For many, the financial pressures leave few choices beyond making their way into the workplace sooner rather than later. (I fear that those pressures are already pushing many students away from less lucrative fields, including criminal law.) To be effective at countering this effect, serious consideration would need to be given to the costing of these alternatives to articling. For example, for students who commit to practicing in less lucrative but essential fields, for example criminal and family law, the Law Society would need to consider subsidizing or even waiving any tuition that would otherwise be payable for these alternatives to articling.

    Again, thanks for the excellent post!

  8. Jen says:

    Great article.

    As a 3L, I can attest to the feeling among students that articling is a means to an ends. Specifically, for those individuals who wish to practice ‘people’ law such as immigration, family etc.

    Articling positions in social justice or public interest law are few and far between, and many students are funnelled into accepting articling positions at full service firms. While the general sentiment for these students is one of ‘I’ll get my articles over with and then do what I really want,’ the prospect of actually switching over from business to family law for example, seems somewhat far-fetched.

    While not impossible, the reality is that many students will choose to stay with secure positions in the firms in which they articled for financial security, with the flip-side that many social justice/ individual client type firms may not value the general research skills that one may gain at a big firm, and instead place more value on client counselling skills.

    On a more cynical note, there is also the perspective that articling offers ‘cheap labour’ to big firms who are in the powerful position of offering the highest quantity of these coveted articling positions that are necessary for licensing.

    It seems unfair for the market to dictate professional licencing requirements- and unfairer still that the big law firms end up in the best position to control the supply of this valuable good.

    Perhaps the students who article at big firms but always wanted to do social justice law will leave to pursue the careers they dreamt of- but why waste a year, only to enter a new field of law completely un-prepared? The answer must lie in creating alternatives to articling, or subsidizing public interest positions to meet the demand of the graduating classes of Canadian law schools.

    • Lorne Sossin says:

      Thanks for the post – while alternatives to articling are, I think, a necessary first step, this will not solve the broader problem you raise, which is the lack of alignment between the opportunities law graduates might want and the opportunities they get. It is simpler in an entirely public setting (residency spots for graduating doctors, for example) or entirely private settings (e.g. MBA grads) – law, it seems to me, will always live between these ends of the spectrum, where the profession is both driven by private and public markets, though hopefully always animated by the public interest.

  9. Sunny says:

    The requirement for articling creates an unnecessary barrier for public service minded students.

  10. Fariya Walji says:

    I do not doubt that articling is beneficial. A family member who graduated from U of T law once told me that three years in law school taught him the law, but not how to be a lawyer. Three months in an articling position replaced three years of theory, simply because knowing the law in theory isn’t necessarily the same as possessing adequate (let alone exceptional) skill to practice it.

    That sort of hands-on experience is invaluable for someone interested in practicing law or in advocacy. To give a parallel from personal experience: Studying law in undergrad (as a criminology major) was completely different from participating in Osgoode Cup (a national undergraduate mooting competition hosted by Osgoode Hall Law School). The opportunity to experience law outside a textbook was unparalleled because it added a multi-dimensional experience that simply wasn’t accessible to a student in the academic setting. The experience itself – of mooting, of articling – taps into multi-sensory learning that appeals to a wide-range of students.

    With the recognition that articling holds great potential to enhance a student’s/graduate’s experience, I am often baffled at the lack of opportunities available for graduates. More and more I hear about the challenges students face to find relevant positions that match their interests. More often do I hear about the excessively competitive interview process and the challenges of obtaining a position in the first place than about its benefit. While I know little about the challenges a third-year student might face when attempting to find an articling position, I do feel that it is these types of obstacles that limit the potential of good students and exceptional lawyers.

    Irrespective of whether articling programs have become inadequate, I do very much agree that alternative avenues for students to “experience” the law school be explored. The question is, whose responsibility is it to provide alternative options? Must articling cease to be a requirement before changes are made? Can each law school modify their own programs, or should there be a unified consensus? If these questions cannot be answered, then, in the end, students are the ones who miss out.

  11. Anonymous says:

    I support the idea for those individuals who wish to practice ‘people’ law such as immigration, family etc. I can also add that the firm’s family practice had been steadily dwindling and was finally axed during my time there.
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  12. Anonymous says:

    Our centure differ a lot from our parents’. We have other purposes, other desisions and as a result we should have other view on our education! I think we should have more practice.I’m absolutely agree,”finally, if this vision of articling as one of a variety of pathways to bridge legal study and legal practice is pursued, it also have the important ancillary benefit of bringing together the law societies, law schools, law foundations and others to work together to realize shared educational goals.”…
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  13. Daliella says:

    My answer to the question would be ‘no’. But my answer to improvement and extend it ‘yes’ . This is a necessary thing, and i don’t thing abolishing is a good idea, it just has to be improved.
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