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Unpaid articling legal, but is it ethical?

|Written By Heather Gardiner
Unpaid articling legal, but is it ethical?
First-year associate Ryan Edmonds says there are other options besides working for free.

Unpaid internships are becoming rampant in North America but the ethical debate surrounding them is gaining strength too.

The legal profession is not exempt. On May 28, the president of the American Bar Association wrote a letter to the U.S. labour solicitor asking for the Fair Labor Standards Act to make it clear that unpaid internships for pro bono cases are allowed.

“[W]e believe that the language of the FLSA does not clearly, on its face, permit or prohibit pro bono internships with private law firms or business law departments related to purely pro bono matters in which the firm or business has no anticipation of revenue,” wrote ABA president Laurel Bellows.

“The ABA agrees that exploitation of law students and other interns is unacceptable; however, the FLSA uncertainty inhibits law firms from offering students the opportunity to work on pro bono matters in a real-life practice setting,” she added.

The issues surrounding unpaid internships have been widely debated in Canada as well, especially in light of the growing articling crisis. With fewer law firms hiring articling students and more students graduating from law school every year, working for free may be the only option for some. Several students have even posted on Craigslist offering to work for no compensation.

But some argue students should not have to work for free.

“Irrespective of the recession, we could reduce the salary but I personally do not think that we should eliminate it completely,” says Kaniz Sattar, who was trained as a lawyer in England and now lives in Alberta. “It will lead to exploitation. I think there are some firms that are very good and they probably wouldn’t do that, but then there are other firms that would exploit that.”

She witnessed a comparable situation in England.

“We had a similar system in the U.K. and it just created elitism, and that’s the reason the U.K. decided to pay the students,” she says.

Ryan Edmonds, a first-year associate in the labour and employment group at Heenan Blaikie LLP, says there are other options besides working for free, adding some of his friends who couldn’t secure articling positions by graduation took a year off to do other things and then reapplied for articling positions the following year.

The Ontario Ministry of Labour recently released a bulletin to clarify the legalities of unpaid internships.

It states anyone who is considered an employee — in other words “if you perform work for another person or a company or other organization and you are not in business for yourself” — is covered under the Employment Standards Act and entitled to its protections. However, if all of the following six conditions are met then a person is permitted to work as an unpaid intern:

1. The training is similar to that which is given in a vocational school.

2. The training is for the benefit of the intern. You receive some benefit from the training, such as new knowledge or skills.

3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.

4. Your training doesn’t take someone else’s job.

5. Your employer isn’t promising you a job at the end of your training.

6. You have been told that you will not be paid for your time.

Articling students are not protected by the ESA as they are students in training for a professional occupation (law) that is exempt from the hours of work, overtime, minimum wage, public holidays, and vacation with pay sections of the act.

“If you have this narrow exemption carved out, which is probably really just to speak to the insane hours that articling students work, but instead it’s being turned around and used to provide actual productive work for no compensation, that’s a real problem,” says Edmonds.

Sattar says not paying students will also have a long-standing effect on the profession as a whole.

“In the long term, it’s not good for the legal profession because we won’t have as much diversity, it won’t promote the same equality; there’s only going to be certain types of people that are going to be able to afford to [work for free],” she says.

Laura Colella, senior reviewer analyst at the Commission for Public Complaints Against the RCMP, says it’s OK for students to work on pro bono cases without pay, but there should be a time limit on it. 

“For students to work for free, it has to be on a limited basis,” she tells 4Students. “It assists the legal world to have students involved in this. It permits law firms to take more pro bono cases [by having] a team of students working with them.”

Sattar says firms should value their students: “It should be a mutual relationship with the students and the firms, rather than the firms acting as though, ‘Oh we’re doing you a favour, you’re doing voluntary work for us, you’re working pro bono.’”

  • Ethics, income, and equality

    While I do agree that many intern positions face serious exploitation issues when considering working hours and wages, I do not believe the legal field should be entitled to paid student positions unless it becomes a standard for many other industries first. The process for becoming a lawyer is cited as a major player in the reasoning behind the exorbitantly high pay legal professionals receive. Given the current wage differences that exists in today's market I would consider law students to be the last in line for paid internships, their certified counterparts can earn up to 26 times what is considered a "liveable" wage. If legal interns are paid during their education then the industry should reflect that standard and charge less per hour.
    The legal profession is already exclusive, diversity isn't in jeopardy. If legal industries were concerned, the process itself would be less expensive, guaranteeing a wider selection of eager individuals to choose from.
  • RE: Unpaid articling legal, but is it ethical?

    R. Grant
    I think it is worth a student getting creative with a law firm or lawyer that might not otherwise consider hiring an ariticling student. This would show initiative and an entrupreneurial spirit which is an important trait for lawyers to bring in and keep clients. An example might be a very small base salary with the student getting a percentage of fees they bill and a share of any work they are able to bring in.
  • Lawyer

    Not paying articling students is definitely a concern However, I think that there are other important issues including workplace safety issues that need to be addressed for articling students. Too often students are abused by lawyers who seem to view articling as a hazing ritual rather than a process by which experienced lawyers help to train those entering the profession. Addressing these issues might help with retention problems and create an atmosphere of increased civility for us all.
  • Lawyer

    When I did my articling back in the late 70s I was paid $50 a week my first year. I feel that I learned more in my 18 weeks of articling then those who are doing it now for over a year. We are pulling ourselves thinking that because the students are articling for a full year that we are teaching them better. Law firms can afford to hire an article student for a short period of time much better then for a full year at a much higher salary. I think students should be paid fairly during their internship/articles, however, it should be for a shorter period of time and we should all expect more intensity during those 18 weeks.By the time a law student is able to practice law they have at least four years of legal training that they have financed. They have to be paid a higher amount of money in order to retire that debt. We have created a Catch-22 situation by requiring them to have this extra year of bar admission.
  • Unpaid Articles

    Ron Beninger
    Is not paying articling students soemthing that would bring the legal profession into disrepute? For heaven's sake, step back from this for a minute. Articles are probably the most formative and important part of the creation of a good lawyer. If we do not display respect for each other and the profession, how can we expect it from others? Last week, sitting down to breakfast in a restaurant, the next table of senior parents and an adult son were on about lawyers. It actually hurt to hear this senior mother refer to lawyers as "The scum of the earth". How nice to feel so included.
  • RE: Unpaid articling legal, but is it ethical?

    New Lawyer
    I wondered when the discussion about articling for free would come up again. With notaries, paralegals, and self-help services all encroaching on entry-level legal work, what is left for articling students? It seems that even some senior counsel are "hoarding" the bit of decent legal work they have left. While there are still under-served communities and areas of law, good luck to law graduates looking for paid work there, particularly while articling.

    All the best with those student loans, fellow alumni...
  • Unpaid? Why stop there?

    Earnest Scribbler
    Once again, the profession is burdened by a lack of imagination. Not paying an articling student doesn't fully take advantage of the opportunities available. After all, the student will derive substantial economic and professional benefit from his or her articling duties. Why not ask him or her to pay tuition to the firm which engages him or her? A legal education isn't cheap. If students are prepared to be profit centers for lawyers, I'm sure a meeting of minds can be arranged. Perhaps easy credit terms could be offered, too. Or perhaps an even older tradition might be restored - indentured slavery. If asking students to pay for the privilege of articling is distasteful, there's always personal service to the lawyers in the firm: light gardening, cleaning, cooking, perhaps weekends spent as a butler or a housekeeper - or a nanny! - might do the trick. Finally, there's always intimate services to be rendered. It's all in a day's pay packet!
  • Two Tier Time

    UO Grad
    "...the student will derive substantial economic and professional benefit from his or her articling duties. Why not ask him or her to pay tuition to the firm which engages him or her?"

    Cynicism aside, if you look at the fees associated with the LPP proposed by LSUC, regardless of the benevolence of their intentions, you can't help but think its kind of like that: pay to play, or work. And its not chump change either, especially considering you probably have to move to Toronto to participate.

    I realize these are trying times borne of economic slump, change in the legal business and exploding law school admissions, but nonetheless I can't wait to see what the age, gender and ethnicity data for LPP enrollment vs. articling and law school enrollment. I've got a hunch...
  • Lawyer

    Martha Rans
    Twenty years ago Michael Giglio and I created an ad hoc committee of unpaid articling students to raise precisely these issues with the then Benchers at the LSUC. We brought a motion requiring that ESA be followed. Supported by only Marie Moliner and Paul Copeland It was defeated. It was a sobering experience. Plus ca change plus c'est la meme chose.
  • Lawyer

    I know some who worked for little or no pay for their articles. None of them are lawyers today. They undervalued themselves at that time and undervalued themselves later so that the practice of law was unprofitable for them.
  • lawyer

    Dre Loke
    I completely agree with this. If you're going to work for free it's probably not a high quality articling job, they probably don't have the money to keep you around, and you aren't going to be very attractive on the job market as you search for a position as a first year associate.
  • RE: Unpaid articling legal, but is it ethical?

    The issue of "articling for free" is nothing new. Years ago, in the 1990s, a few students were offering to article for free, prompting the Vancouver Bar Association to adopt a principled position against articling for free. The issue is cyclical e.g. there are times when it is a students' market and there are times when it is an employers' market. Perhaps the difference now is student expectations have risen such that "not just any article" will do, and everyone wants a big firm, and perhaps, law firms have contributed to rising costs by increasing those expectations (e.g. with guaranteed associateships in the early 2000s).
  • RE: Unpaid articling legal, but is it ethical?

    Shame on any articling employer who bills out a student and doesn't at LEAST pay them a min wage. I know of many firms that are doing this and it's wrong.