No wonder the legal profession is in turmoil. Between 10 and 15 per cent of fully qualified law school graduates, about 400 students, cannot find articling positions. Currently, if one cannot article, one cannot practise law in Canada.
Proposed solutions range from ignoring the problem to abolishing articling. A divided Law Society of Upper Canada has just approved a three-year pilot program to provide alternative instruction for those who cannot find an articling position.
A crisis requires a whipping boy. Many lawyers have found one: legal education. Everything would be fine, they pronounce, had the law schools not increased enrolment. Everything will be fine again, they dream, if law schools restrict enrolment.
Ironically, the law school bashers seem unaware of the federal Competition Act. Restricting admission to law school to protect mandatory articling, itself probably an unlawful barrier to entry, is against the law! The profession can’t do it and neither can the law schools.
In the absence of robust competition, the legal profession has priced itself beyond the means of ordinary Ontario citizens. Access to justice is an important statutory mandate of the Law Society of Upper Canada. If lawyers want to retain the precious right to self-regulate in the public interest, reducing the supply of legal services to the public is unwise.
We could close every law school in Ontario and still have an articling crisis. 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.
The number of foreign educated law students seeking to work in Ontario is only going to grow. Despite concerns expressed by legal educators, the LSUC has endorsed an “approved law degree” that effectively consists of nothing more than a list of about 10 mandatory courses. Any law school in the world can easily qualify to grant an approved Ontario law degree. The civil law schools of Montreal and Sherbrook already have acquired that right. Next in line are Bond, Australia and Leicester, England. They will soon be Ontario’s largest law schools.
The other way some lawyers whip the law schools is to pronounce that today’s graduates are poorly trained and unsuited for practice. Many should not have been admitted let alone graduated, they say. There is often a subtext.
Legal education is far from perfect. But it has changed a great deal. Today’s students are better educated and more committed than ever. They are preparing for a much more complicated employment market than existed even a few years ago. They enjoy experiential learning opportunities in clinics, work-study placements, and through innovative active learning in the classroom. Legal education can improve further. But Ontario should be proud of its current graduates.
For more than 50 years, the LSUC assumed the responsibility to deliver, through the Bar Admission Course, substantive practical education and skills training to graduated law students — for a fee. Then, without consulting the law schools, the LSUC walked away. University law schools cannot fill this entire void, no matter how hard they try.
Ontario’s law schools did not cause and cannot cure the articling crisis. They cannot alone address the profession’s training objectives. 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. LSUC Treasurer Tom Conway has promised the Ontario law deans he is willing to work with us. We look forward to it. Meanwhile please help us call off the dogs.
Bruce Feldthusen is the dean of the Common Law Section of the University of Ottawa Faculty of Law.