So who is it that should help aspiring lawyers across the chasm between classroom and courtroom? It is an issue bedevilling the profession as it faces a period of readjustment and the rethinking of some of its most basic articles of faith.
Does the responsibility fall to the legal profession, which has traditionally hired and trained articling students? Or, should there be a special professional training program along the lines of the trial scheme now planned in Ontario for individuals who cannot get, or choose not to take, articling positions? Should these programs be self-supporting or receive funds from the profession or even the public? Should law schools’ curriculums be remodelled so graduates receive practical professional training as well as theory? Or should an entirely new, market-driven model of legal education be created, a scheme that would abolish articling altogether? These are just some of the questions disturbing the waters of Canada’s legal world and they are questions that, understandably, are top-of-mind for those currently making the perilous passage into the profession.
The divisive and often emotion-charged debate is being played out against a backdrop of a legal system so short of affordable lawyers that Canadian courts are becoming clogged with self-represented litigants. Figures compiled by University of Windsor law professor Julie Macfarlane suggest as many as 80 per cent of people in family court and 60 per cent involved in civil cases are representing themselves. There is also a severe shortage of lawyers in many areas away from the big centres, and a growing number of lawyers trained overseas (both Canadian and foreign-born) looking for their piece of Canada’s legal action. University law schools are increasing their student populations and a new law school will open at Lakehead University in Thunder Bay, Ont., this September. Fees at some institutions (though certainly not all) are heading sky high. The once famously inflexible profession is greying and is under mounting pressure to innovate and adapt to new ways of doing business.
Jordan Furlong is a partner at Edge International, a consultancy for law firms and legal enterprises, and is somewhat of a disturber of the status quo who contends it is time articling through law firms be re-thought. He thinks the law practice program approved late last year, after fierce debate, by the Law Society of Upper Canada could be “monumentally important” and a model for the rest of the country. The LPP effectively replaces articles and opens another avenue to those seeking to be called to the bar. The model, described by University of Ottawa law professor Adam Dodek as the most significant reform in Ontario’s legal profession in 70 years, was not easily arrived at. It grew out of recommendations formulated over a year and a half by an LSUC task force. It was the subject of an intense and often bitter debate, stretched over two days, among members of the law society. The LSUC’s treasurer Thomas Conway called it, with a touch of lawyerly understatement given the choleric and apocalyptic tenor of the internal debate, “a highly controversial step.”
The Ontario LPP as envisioned will train lawyers in the practical side of doing business. It is anticipated that graduates from the pilot program will achieve a level of competency that will allow them to enter the profession and assist the public. “Those providing the LPP training need to turn around the idea only the dregs will take their course,” suggests Furlong. Far from just being a repository for the second rate, Furlong argues the trainers providing the LPP “should emphasize the idea they are in the business of training lawyers. Law firms are not in that business.” In his view, a smartly run LPP could become a very attractive alternative for those who want rigorous practical training rather than the sometimes casual, unfocused, and wasteful articling process in place at many firms. He says a meaningful, challenging, and successful LPP could create a market for legal training and law firms will have to improve “or get out of the game altogether.”
Getting out of the game is something that, in Furlong’s view, makes a lot of sense. He says law firms, by providing articles, are paying graduates to undergo training. “The idea of paid post-graduate training will fade away.” He also believes there is a public interest element in articling. “Law firms will bill out their students hours, though those hours may not be very efficiently spent and the students may not be doing any work relevant to becoming competent lawyers.” He says you can hardly blame the firms. “They are not disinterested providers of educational services, they are not charities.”
Ian Holloway has an especially broad view on legal training. He is the dean of the University of Calgary Law School, was a two-term dean of law at Western University in London, Ont., and associate dean at Australian National University in Canberra. He has an LLM from the University of California, Berkley and was a practising lawyer in Nova Scotia. He also has a PhD and a QC. Given all that, who does he think should be training Canada’s lawyers? Holloway calls that “the great question” and in the end says he believes the professional training of young lawyers should be a shared responsibility. “The essence of being a profession implies the transmission of knowledge from generation to generation. There is a lack of recognition on the part of the profession that we are on the same team. The failure to acknowledge that is at the core of the [present] problem.” But Holloway is quick to say the profession does not carry all the blame — he thinks the problem is a two-way street between the academy and law firms. Sounding a bit like a marriage counsellor he says, “We don’t talk about our shared responsibility and [as a result] we don’t have the relationship we should have.”
Holloway is encouraged by the LPP plan being launched in Ontario. He says in Alberta, with its strong economy, “our students are still getting jobs. We haven’t seen the big placement problems such as they are having in Ontario.” However, he remains convinced “articling is not sustainable, the number of articling positions are simply not there.” It is a situation he believes is exacerbated in Ontario by the fact “Toronto is where the work is, and the vast majority [of graduates] would like to work in Toronto, not Timmins.” While he suggests Ontario’s LPP may initially be “second-tier” he believes, much like Furlong, that “if they do it well” it may become very attractive.
But while the rational Holloway believes articles may be doomed, the professorial Holloway would mourn their passing. “In articles you are learning how to be a lawyer.” In his view being a lawyer means a lot more than knowing which form to fill out or which section of the law to rely upon. “Articles are a sort of rite of passage, a sort of soaking up of the intangibles of what being a lawyer means. In England if you join the Inns of Court you have to go to a certain number of dinners.” Not for the food, Holloway suggests, but in order to breathe the same air as your elders and understand the subtleties of what drives those who have mastered the profession. He sees articling as “a period of inculcation of certain skills, of a certain competency, of a certain knowledge.”
The dean does not want to see law schools become “trade schools,” which is why “I am not so keen about co-op programs” that see students work in the profession as part of their degree program. But he does believe Canadian law schools have to recast their underlying thinking as lawyers are too often taught to think in terms of problems, but what clients want are solutions. That is one reason U of C will be including a business component in its law curriculum this fall. “At the very least, lawyers should be able to read a balance sheet.”
But Holloway and Canada’s other law deans are well aware there is no shortage of critics of the schools they run. Among them Furlong, who says too many cash hungry universities are feeding a perception among students that a law degree is “a ticket to a very nice job.” But an increasing number of graduates, Furlong argues, are finding out that isn’t true and too many of them cannot even get into the profession. Some critics say what the universities are doing is little better than a bait-and-switch game. They promise a lot (though in fairness it may be the broader culture that makes the promise of wealth) and deliver next to nothing.
Bruce Feldthusen, dean of the common law section at the University of Ottawa’s Faculty of Law, says when it comes to law schools it’s time “to call off the dogs.” He criticizes the profession, saying it has priced itself beyond the means of the ordinary citizen. “If lawyers want to retain the precious right to self-regulate in the public interest,” he recently told Canadian Lawyer, “reducing the supply of legal services to the public is unwise.”
The roiling debate over articling has not, it seems, penetrated the quiet corridors of Winnipeg’s Aikins MacAulay & Thorvaldson LLP, the largest firm in Manitoba. Associate Erin Wilcott is manager of the firm’s professional development and practice support group, a job that includes overseeing each year’s crop of articling students, most of whom come from Robson Hall law school at the University of Manitoba. The firm selects between five and seven graduates from the 70 to 100 applications it receives each year from across the country. “The students in Manitoba are well-served by the articling system,” says Wilcott, perhaps reflecting the attitudes of many big firms outside Ontario, “I don’t believe there is a need to look at alternative arrangements.” Articling in Manitoba and the other Prairie provinces is supported by the Canadian Centre for Professional Legal Education. During the course of articles, CPLED offers students a series of online and face-to-face courses designed to meet law society requirements for competency.
Would-be lawyers must pass the CPLED courses and successfully complete their articles before becoming eligible to be licensed as a lawyer.
Aikins is a regional firm, and the experience of big national firms such as Blake Cassels & Graydon LLP is much the same. Partner David Kruse is co-chairman of the firm’s Toronto student program, which receives 700 to 800 applications every year from law students. About 30 get positions and they are usually top students. “The system, as it exists now, does work for big firms like ours,” says Kruse, but he worries about the long-term impact of so many would-be lawyers not getting articles. “Will our children want to be lawyers?” he wonders. Kruse acknowledges that Blakes’ objective will remain to hire the best people possible. If articles are abandoned or undergo a metamorphosis, the firm will still hire and train graduates to be corporate lawyers, whatever the process is called. “We are in the business of providing advice. We’re only as good as the people we hire.”
While many voices complain about lack of opportunity for young lawyers, the shortage of barristers and solicitors in areas outside the major centres is a problem across the country. In fact, this undersupply is part of the rationale for the opening in 2011 of a new law school at Thompson Rivers University in Kamloops, B.C., and the planned opening this September of the new law school at Lakehead University. “[We] are preparing students for the practice of law in rural and smaller centres,” says Lakehead’s founding dean of law Lee Stuesser. While that is the argument made by the new law schools, the case for training lawyers and other professionals in settings away from the metropolis so they will upon graduation settle in the hinterland remains unproven.
The president of the Alberta branch of the Canadian Bar Association, Cyril Gurevitch, runs a successful partnership in Grande Prairie, Alta., some five and a half hours northwest of Edmonton. He has dedicated himself to access to justice for rural Albertans. As far as he is concerned the only articling “crisis” in northern and small-town Alberta is the inability to attract young lawyers. He insists going to a regional centre is “a plausible solution for people who can’t get articles in big cities,” adding the problem of supplying legal services in smaller centres is only going to get worse as older lawyers retire. He says interesting law “doesn’t end at the boundaries of Edmonton and Calgary.”
Gurevitch has to look no further than his own office to find an example of a young student-at-law who decided opportunity was knocking far from the glittering lights of the big city. Jim Bird graduated from the University of Victoria and in spite of intense efforts could not find articles. “I applied to 15 or 20 firms in Victoria and a half dozen in Vancouver,” says Bird. “Most people simply said: ‘we don’t have room.’” But when Bird approached Gurevitch Burnham Law Office in Grande Prairie, he was snapped up and started his articles in June of last year. “They do a bit of everything except criminal law,” he says. “Family, civil litigation, real estate, and corporate. I have my own office — with a window.”
But the need for more new lawyers is not a view shared by Toronto author and lawyer Mitchell Kowalski. He says the new law schools opening in this country “are setting up more kids to fail.” Kowalski has been shaking up the legal profession with his unsettling book Avoiding Extinction: Reimagining Legal Services for the 21st Century. Everything is changing he says. The partnership model has grown tired, competition from in-house lawyers is intensifying, and the outsourcing of day-to-day legal work to places such as India is on the rise. “Yes,” he speculates, “people will always need legal services; they just won’t want them from legal firms.”
Kowalski points to the evolution of the profession in England and Wales with the adoption of new legislation. And “the U.K.’s reinvention of the legal profession is just beginning,” he insists. He also has unsettling stories of computer programs that can instantly review existing court decisions and if fed a set of facts cough out an analysis of the possibility of success before the courts. Kowalski has disturbed more than one senior partner with projections that “the kid playing Xbox in his mother’s basement right now has the potential to eat everyone’s lunch in the legal profession,” presumably by one day formulating a program that does what lawyers get paid to do now.
When it comes to articling, Kowalski is a fan of the LPP, which he says is similar to privately created and successful law training programs in England. “Ultimately I hope articling will die a natural death as lawyers come to understand that a well-thought-out LPP will produce much better practice-ready lawyers.” In England and Wales, he says the move to an open legal marketplace where non-lawyers can own and operate legal services providers “will push legal education to become more diverse and exciting.” Kowalski says Canadians need to “re-think what it really means to be called ‘a lawyer’ and re-examine the skills that a lawyer really needs in the 21st century.”
The Canadian Bar Association is doing just that. It is engaged in a sweeping re-imagining of the way legal services are delivered in this country, focusing on three broad areas: access to justice, diversity, and the future of legal practice. Fred Headon is the CBA’s first vice president and practises in-house with Air Canada in Montreal. He is heading the explorations surrounding legal practice. While a final report is still some time off, and will include research on numerous aspects of the business of law, Headon says when it comes to preparing lawyers in the future he has some thoughts already on what the recommendations may be. “It is likely they will suggest more people should be involved than currently are in training lawyers — a recognition that it takes more than just lawyers to train lawyers.”
Grant Borbridge, chairman of the Canadian Corporate Counsel Association and a senior Calgary in-house lawyer, is concerned many young lawyers are not learning the financial and management skills required for success within a corporation. But he is encouraged by Ontario’s LPP plan, which he believes could offer something “other than the traditional articling framework” and wonders if an LPP could be aimed directly at producing corporate counsel. He says the CCCA is “looking at ways to make it happen.”
In sum, the prevailing mood among the thinkers, the tinkerers, the educators, and the profession appears to be something of a reluctant willingness to consider alternatives to articling. But how many provincial law societies will be willing to undergo a wrenching battle such as the one recently concluded in Ontario remains to be seen. All this, of course, is of little comfort to the embittered law graduates and disappointed foreign-trained lawyers now locked in a dispiriting search for articles. But these would-be advocates who fear they will never fly may wish to consider a gloomy report prepared by the Law Society of Upper Canada. “There can be no doubt that the opportunities for a young man to make a living in the law today [are] much more limited than it was some years ago.” That utterly discouraging report was written near the end of the Second World War. It proved to be completely wrong. In the postwar period, law business boomed as Canada rode an economic expansion that lasted nearly a quarter of a century. The new winds of change blowing in the legal profession may allow even more lawyers to soar.