Should Articling be Abolished?

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!