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On the cusp of change

Cover Story
|Written By Heather Gardiner
On the cusp of change
Illustration: Huan Tran

Ontario’s articling crisis is no secret. Statistics show 15 per cent of applicants were unable to get an articling position in 2012, and that number is expected to rise. Some blame the law schools, others point at law firms, but there isn’t any one reason for this problem. More applicants than ever are seeking entry to the legal profession, including those who have studied abroad — possibly because they couldn’t get a spot in a Canadian law school — and fewer law firms are offering articling positions as a result of the recent economic downturn.

Many have been looking to the Law Society of Upper Canada for a solution and, now that a potential resolution has been passed, naturally not everyone is happy about it.

On Nov. 22, 2012, the LSUC approved its articling task force’s motion to implement a three-year pilot project starting in 2014. It includes a law practice program to run simultaneously with articling, but provide an alternative path to licensing and culminating in a final assessment for all licensing candidates. This new program, to be delivered by one or more third-party providers, will combine a skills-training component and a co-op work placement for a total of eight months. It has not yet been determined who the providers will be. At press time, LSUC treasurer Tom Conway told Canadian Lawyer 4Students the law society was finalizing details of its request for proposals, which was issued in early February. In it, the law society set out the criteria and standards to be met by the LPP. It suggests the provider make efforts to ensure the co-op portion is paid (although that is not mandatory) as well as aiming to put aspiring lawyers into firms in underserviced areas.  Final proposals must be submitted to the LSUC by May 31.

Lee Stuesser, founding dean of Lakehead University’s new law school — slated to open in Thunder Bay, Ont., this fall — says if possible, he would like to incorporate the new program into Lakehead’s curriculum so when students graduate they can start practising law without articling or completing a co-op. “We are waiting to see the call for proposals to see what’s required, and if we can, we are certainly going to look at incorporating professional legal training and placement within our existing program,” he says. In order to do so, he would like to increase class hours so students can still graduate within three years and spread skills training throughout law school, starting in first year.

Stuesser says it’s time for a change in legal education, adding Lakehead is the first new law school in Ontario in 44 years and legal education hasn’t changed much during that time. “There’s what I might call a lot of fluff in third year, and I think that maybe we need to look at what we do in law schools a little differently,” he says. On that front, Osgoode Hall Law School made a concerted move towards experiential learning last year by making it a graduation requirement for all law students. It also opened an experiential education office.

Osgoode dean Lorne Sossin, an advocate of practical learning, says he’ll be paying close attention to the details of the law society’s request for proposals as there is some concern that the new program could interfere with the law school’s existing experiential initiatives. “The concern is as LPP providers search for placements for their students, whether paid or unpaid, some of these may start to cannibalize or compete with our existing public-interest, pro bono, and other initiatives that have our students in placement-type settings,” he says.

Law deans outside Ontario are also curious to see who will run the LPP and how. University of Victoria Faculty of Law dean Donna Greschner says UVic runs an excellent co-op program that approximately one third of its law students participate in, which could provide insights for Ontario. The co-op program takes place after first year and students complete three, four-month placements usually within government, a non-profit organization, and a law firm. Students are paid and can choose to do their co-op anywhere in the world. They also take a series of seminars and lectures in advance of the co-op. It does take three-and-a-half years to obtain a law degree though, compared to the standard three years at most Canadian law schools, and students go to school through the summer.

Greschner says the extra time is well worth it. “A well-designed co-op program — which is what we have at UVic — is a superb educational opportunity for students, gives them excellent work skills, [and] allows them to apply their academic learning. They become better lawyers, I think, because of it,” she says.

Some law deans have seen a practical legal training program first-hand in other jurisdictions. Camille Cameron spent 10 years in Australia as a law professor and associate dean at the University of Melbourne before becoming dean of the University of Windsor Faculty of Law in January 2012. In Australia, there are various licensing models depending on the state. At Melbourne, in the state of Victoria, students can choose to article or take a practical legal training course.

In the United States, there is no articling requirement. However, since the release of the Carnegie Foundation for the Advancement of Teaching’s report, many law schools there are seeing the benefits of practical training and have been ramping up their experiential education programs as a result. There are several licensing routes in England and Wales, but all candidates are required to complete a two-year legal practice course, which includes a professional skills course.

“If you look at each of these jurisdictions objectively, you can’t say that one system produces superior lawyers over another system because there’s never actually been significant research or study to determine whether one system is better than the other,” says the LSUC’s Conway. “That’s actually what we’re trying to do in this pilot project in our own way is to see what are the most effective techniques for providing practical training for lawyers.” But Cameron says there is some evidence a two-tiered system does exist in Australia. “My experience was — at least to some extent — yes, there were some people who perceived the better option to be articling and the legal practice course as something one did if one could not get articles.”

The Windsor law dean worries Ontario’s program could also create two tiers of graduates, a concern also expressed by a vocal minority of the LSUC articling task force. “We’re concerned that [the LPP] group is going to be stigmatized by the profession,” Toronto lawyer Peter Wardle told 4Students shortly after the final report was released last October. “We don’t like the idea of having what is essentially a two-tiered system.” However, Stuesser, who has been a law professor at Bond University in Australia since July 2008, calls the two-tier argument a “red herring.” He says Ontario already has a two-tiered system: students who article on Bay Street and everybody else. “When [students are] finished their articling, the tiers disappear, don’t they? They’re all lawyers. Then what happens is that you’re going to have good lawyers and you’re going to have bad lawyers, and quite frankly you can have bad Bay Street lawyers and you can have bad small-firm lawyers. So this notion of two-tiered, you don’t have it in Australia. In certain areas the majority of the people go through this process because firms quite like the fact that their students are getting consistent training offered through various providers.”

But some Ontario law students aren’t convinced. Thomas Wilson, a 3L at Osgoode and chairman of its student caucus, says the law practice program threatens to create a divide in the profession and among students. “I can’t imagine a firm would be willing to hire a young lawyer that hasn’t had experience in their firm or a firm environment,” he says. “So I really think the LPP licensees are going to be at a severe disadvantage when compared to students that are going through the articling process.”

University of Ottawa first-year law student Eric Vallillee says he’s worried about the changes. “If big law firms or small law firms or anybody aren’t willing to hire people for articling programs, then why would they be willing to hire graduates who didn’t get those articling positions?” he says. He’s willing to take the LPP route if he isn’t able to secure an articling position, but only as a last resort to get his licence.

Vallillee is particularly concerned about the cost of the new program. The articling task force estimated the LPP would drive the current licensing fee up to $5,670 per candidate from the current $2,950, once a final assessment is factored in. During November’s heated debate, law society benchers agreed to increase LSUC members’ fees to help cover the costs of the pilot project. It’s also expected that the co-op placements will be unpaid. “I don’t know if people can afford that,” says Vallillee. “We’re graduating with record amounts of debt, so I don’t know how you can expect somebody to work for several months, full time [at] an intensive job like a legal co-op, where they don’t get paid.”

Conway says he understands students’ concerns about the cost, but they should keep in mind not so long ago articling positions weren’t as well-paid and graduates had to complete an expensive six-month bar admission course. “We have to look at these reforms in context,” he says. “Sure, there’s no doubt, it creates more debt for students but in context it’s not of the magnitude that some people have said it is.”

Andrew Langille, a Toronto lawyer and author of the web site youthandwork.ca, says law students are already overburdened by the current tuition levels, which are becoming “horrendously excessive.” It’s not unheard of for students to graduate with $100,000 to $150,000 in debt, he adds. Langille points to the law schools as a major cause of the articling crisis. “The underlying issue is that the law schools are producing too many law students, and that’s an issue that the law society doesn’t have control over, so any solution that they come up with is going to be imperfect because they don’t have buy-in from the universities and the government.”

University of Ottawa common law dean Bruce Feldthusen defended the law schools in an article called “Legal profession in turmoil: Let’s blame the law schools,” which he wrote for Canadian Lawyer’s web site in December 2012. “We could close every law school in Ontario and still have an articling crisis,” he wrote. “Between 500 and 1,000 students who obtained their legal education in a foreign law school now annually seek admission to the Ontario bar. Many are Ontario residents who were unable to find a place in an Ontario law school. If the Ontario law schools were to reduce enrolment, those who could afford to would simply study abroad. Less wealthy Ontario students would be forced out altogether. This would not make a meaningful dent on the demand for articles.”

According to statistics from the Ontario Universities’ Application Centre, from 2000 to 2012, the University of Ottawa Faculty of Law increased its enrolment by 198 students. The University of Windsor’s law school also increased its enrolment by 67 students during that time, whereas every other law school’s numbers stayed relatively the same. Sossin points out there is a tremendous demand on law schools. “We get 11 or 12 people vying for every spot at Osgoode,” he says. “Canada doubled its population over a 30-year period if you go back, and virtually that was the last new law school, so arguably there’s a pent-up demand issue. I don’t think the answer is restricting admissions or not allowing new law schools to develop.”

Cameron Bryant, a third-year student at Osgoode, tells 4Students increasing enrolment isn’t fair to students. “When a law school simply lets in more students than there are jobs, it fools us into thinking that we’ll all be able to have articling positions.”

Another point of contention has been the lack of cohesiveness between Ontario’s law society and law schools in trying to solve this articling problem. Feldthusen shifts some of the blame onto the law society for a lack of consultation. “The law schools could work as equal partners in co-operation with the profession to help address real problems. They have never been invited to do so,” he wrote. Cameron, too, says she is disappointed by the lack of communication between the law schools and the LSUC before the changes were passed. “My view is, frankly, that people in law schools know more about teaching and learning and training than most members of the law society, and I don’t mean that to sound pejorative at all, but we all have our areas of expertise.”

Langille says it’s ridiculous that the parties most affected by this issue haven’t been able to work together. “The law society, the government, and the universities are all extremely powerful [and] prominent institutions in society. The idea that they cannot sit down at the table and figure out a solution is shocking given the severity of the problem,” he says.

A growing concern is the increasing numbers of internationally trained lawyers seeking entry to the Canadian bar. Conway says that group is the largest single source of licensing candidates, and the majority of them are Canadians who studied abroad because they couldn’t get into a law school here. Provinces such as Alberta are seeing more candidates come through the national accreditation process, which foreign-educated and -trained lawyers must go through in order to get licensed to practise in Canada.

Steve Raby, president of the Law Society of Alberta, says previously he didn’t think there was an articling problem in that province. “Until this year, we thought that most of the students that wanted to article in Alberta were finding articles, but the number of students in our [Canadian Centre for Professional Legal Education] course this year went up from 336 to 411, which is by far the biggest jump we’ve seen. We initially thought when we saw the numbers that there must be a lot of Ontario people coming here, but it seems that most of the increase is people with foreign degrees coming through the national accreditation.” CPLED is the bar admission program in Alberta, Manitoba, and Saskatchewan. “It would seem logical that if those numbers continue to increase at this year’s rate, very shortly we’d be in a crunch as well,” he adds.

With that in mind, Raby says Alberta’s law society is watching with interest to see what happens in Ontario, adding there may be a push to adopt a two-stream licensing system across the country if Ontario’s pilot project is successful.

Jack Cram, president of the Law Society of Manitoba, says it is also curious to learn the details of Ontario’s law practice program. Although law students in that province currently have no problem finding articling positions, the law society is taking precautions by establishing an articling task force subcommittee to follow the changes in Ontario and re-examine its current articling system. Cram admits that Manitoba could face the same articling dilemma someday. “We do anticipate we could very well have a problem in the future due to a number of reasons, one of which is the Ontario problem could very well be exported to Manitoba [with] students attempting to find placements here in our province. And the other concern is that there are several new law schools coming online.”

Alan Treleaven, director of the Law Society of British Columbia’s Professional Legal Training Course, says there isn’t a lack of articling positions in B.C. “As best we can tell there’s no significant shortage of articling positions; there will always be a few students who have a challenge finding a position,” he says.

For now, the greatest problem lies in Ontario, but other jurisdictions recognize it could have implications in their backyards. University of Calgary Faculty of Law dean Ian Holloway says, “What Ontario has done is going to have national implications. . . . Whether we want to or not, the law societies outside of [Ontario] are going to have to grapple with this issue sometime in the next few years.”

Greschner agrees that Ontario’s actions could affect the rest of the country. “If [the LPP] is successful in Ontario and it becomes no longer a pilot project but an accepted method of entering the bar, then I think any reasonable observer will predict that there will be consequences for articling requirements across the country,” she says. “Ontario is the largest province, and if they try something out and it’s successful, why wouldn’t other law societies also look at this and say, ‘Does this help address some of our needs and our concerns?’”

Conway hopes the law practice program will become not only an accepted path to licensing, but a better one. “I hope we’re able to implement this program successfully and that it will, over time, persuade the profession and students that it is indeed a preferable route for many graduates coming out of law school,” he says. “If we can get innovative providers and interesting and relevant programs, I’m quite optimistic that students will find this to be a really good alternative.”

So what is this new program going to look like? Where are these co-op placements going to come from? At this point it’s still hard to know. The law society will assess each proposal it receives and plans to announce the chosen provider(s) in the fall, says Conway. Once the program is established, he says the next steps for the law society will be to enhance the articling process, design and implement the final assessment, and then evaluate the pilot project. Many changes are on the horizon.

  • Lawyer-to-Be

    Arun Mohan
    In spite of what the powers that be say, there are far too few articling positions for excellent candidates. I hope, therefore, that the Ontario program works, and does not merely ghettoize lawyers-to-be into two tiers of professionals. Arun Mohan

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