Tom Conway, Treasurer & Members of the Articling Reform Task Force
Law Society of Upper Canada
An Open Letter on Articling Reform
The Osgoode community has been engaged in the debate around articling reform in a variety of settings. We welcomed you in your role as Chair of the Articling Task Force and Laurie Pawlitza, then Treasurer, in February 2012 for a Town Hall on articling reform. As was apparent on that day and in the months since as the discussion of this issue has unfolded, there is a broad diversity of views at Osgoode on this issue. Osgoode’s Student Caucus has been engaged in developing its position on articling reform this Fall, and other members of the Osgoode community have provided submissions or joined in submissions from other groups and organizations. I have been struck how this issue has sparked passionate input, both about the status quo and how to improve it, and about the respective roles of the Law Society and law schools.
I have waded into the articling reform question twice before through my blog (at http://deansblog.osgoode.yorku.ca/) In these earlier posts, I set out what I take to be the problems that need to be addressed – first. that the status quo of articling as the exclusive gateway to licensing means that qualified law graduates are barred from access to the profession if they cannot find a position (which could be and often is due to the economic vagaries or other challenges which students who need greater supports or are from non-traditional backgrounds might face). While better empirical data is needed in this regard, the Law Society has indicated those unable to find articles include a disproportionately large number of students from equity seeking groups or who are mature students or students with complex personal circumstances. In other words, we now face a two-tier system of access to the profession that is not principled and, in my view, neither desirable nor tenable.
The other mischief on which others have written extensively is the uneven nature of the substantive elements which comprise the current articling requirement. What substantive competencies unite the experience of clerking for the Court of Appeal, working for a sole real estate or family law practitioner, and articling at a 700 lawyer national firm?
In October, the Task Force has brought to Convocation a majority report and minority report. The Task Force has recommended a pilot project that will provide an alternative to articling through a new Law Practice Program (LPP).
The recommendation contemplates a 5 year transitional plan, which provides:
- The pilot project is to begin in the 2014-2015 licensing year;
- The current ten month articling program will continue;
- The LPP, expected to be about 8 months long, will be an alternative path for those who do not participate in the traditional articling program;
- A “final assessment” is to be introduced to test that candidates who either articled or took the LPP have the required practice competencies before being licensed;
- The two paths to licensing will be monitored, assessed, compared and a final report for Convocation’s consideration is due by the end of the fifth year.
The minority view called for the end of articling and dismissed the two tier licensing process on the basis that it is unfair and unworkable for the following reasons:
- A disproportionate number of person who are unable to obtain articling positions appear to be from equality-seeking groups.
- The Two tier system will create two classes of lawyers with the preferred group being those who articled.
- Candidates in the lengthy LPP must be able to support themselves and thereafter work for free at a co-op type placement which may require temporary relocation and possibly be of limited or no value.
- The cost of the new two tiered licensing process will increase substantially, but will be payable on an equal basis by the LPP candidates who will not be receiving articling income. As well, some law firms pay those costs for their articling students. The pilot project simply puts off needed change;
- The Law Society has numerous prior reports and examples of past bar admission programs and evaluations that could be adapted and provided online.
- The ten month articling program and eight month LPP could be replaced with a comprehensive transitional pre-licensing program of two to three months with objective, measurable standards that assess substantive legal knowledge and business, professional and ethical issues.
- Newly licensed lawyers who practice on their own will be better assisted in their first years through mentoring and other regulatory oversight to ensure public protection.
- Convocation was not provided with a realistic estimate of the significant costs to be incurred to administer two streams of licensing candidates instead of one.
(I am grateful to Larry Banack’s always lively “Bencher News” for this handy snapshot summary of the two proposals).
I believe the shared elements between the majority and minority report are far more significant than the areas which divide the two perspectives. Most importantly, both contemplate addressing the mischief referred to above – if either proposal became reality, articling would no longer be the exclusive gatekeeper for access to the legal profession in Ontario. Second, both proposals acknowledge the need for an objectively verifiable, merit-based transitional program from law school to licensing. Third, both proposals value and support the move at Osgoode and elsewhere to integrate more experiential education in law school in order to enrich our academic program.
That said, each proposal has generated concerns. There is legitimate anxiety accompanying the prospect of a “two-tier” track to licensing – one well-remunerated and well-regarded, the other leading to greater student debt, uncertain career prospects and stigma. I share the anxiety. I also see this outcome, however, as in no way an inevitable consequence of adopting the majority report. An LPP model, for example, need not provide a pathway only for those unable to obtain articles. LPP providers may work with firms, governments and clinics to blend on-line, in-person, and placements in order to provide a more effective and higher quality training/education than articling now provides, with a variety of funding models in mind. LPPs may create innovative new legal service delivery models for placements which will have a positive impact on access to justice. Far from stigma, LPPs if developed and delivered successfully to respond to the needs of students and the legal community, may grow to overtake articling as the transitional pathway of choice.
With respect to the minority report, there is legitimate anxiety accompanying the prospect of turning our backs on articling and the generations of Canadian lawyers who have benefitted from this mentorship and transition from legal study to legal practice. Adopting the minority report, however, does not preclude the development of new transitional programs where they are warranted, or integrating robust mentoring programs into the early years of practice, particularly for junior lawyers at risk due to the absence of other resources and supports. Further, the same potential innovations discussed above in the context of LPPs could accompany the pre-licensing transitional program envisioned by the minority as a prelude to the licensing exams.
As I have stressed in the past, LSUC should nurture innovation, and I believe both the majority and minority reports share the benefit of creating new space for ideas, new approaches and new solutions to the pathways to practice. The question is whether and how the LSUC should limit or constrain the development of such pathways.
In my view, the role of the LSUC should be to establish the outcomes that candidates need to demonstrate in order to qualify for licensing, and to support opportunities for all qualified candidates to achieve those outcomes. Both articling and its alternatives would have to meet such standards. Determining whether those outcomes are best achieved through articling (or expanding the availability of articling), an LPP or analogous program (involving co-op placements, internships, etc), other types of pre-licensing transitional programs, or initiatives to provide training based on new service delivery models and access to justice goals, etc, seems to me to be a task to which the LSUC is far less well suited.
Beyond establishing what competencies candidates need to demonstrate, the other role that the LSUC must undertake, as noted above, is ensuring access. To regulate the profession in the public interest, I would argue that it is unacceptable for the Law Society to shut the door to those who cannot afford the cost of the pathways to practice. The Law Society also has a leadership role in to play in ensuring pathways to practice are inclusive, fair and address the needs of diverse candidates. I believe the Law Society needs to make a substantial contribution to the start-up costs of this new era, and to ensuring it is a sustainable for those most in need, but how this contribution is funded, in my view, merits more consideration.
Under both proposals, there is a “one-size-fits-all” stage in the progress toward licensing represented by the Bar Admission exams. How graduates move from academic study in law school to these exams, however, need not come through a single cookie-cutter solution. Let as many flowers bloom as can thrive in this new regulatory environment. I could go on, but fear I have mixed enough metaphors as it is.
Some important voices have called for more study and to delay any decision on articling reform for at least another year. I would support further study and reflection on which pathways to practice will be the most effective, and the most accessible, or as to what lessons we should learn from the Australian or UK experience. I have learned a great deal from following the consultative process in which the Law Society has been engaged and reviewing the various submissions, and there is no doubt more to learn, but I would emphasize that the time to address the mischief we face with the status quo is now. Ideally, I would be keen to see the majority and minority members of the Task Force find sufficient common ground to move forward with a consensus position.
I should add I also endorse the submission coming from the Canadian Council of Law Deans which asks Convocation to focus on the issues of fairness/access for students and the impact of the proposed reforms on law school programs. That submission also underscores the many ways in which this has become a national issue and not simply one with relevance for Ontario.