If the profession is broken, it may not be so bad

If the profession is broken, it may not be so bad
On Oct. 25 and Nov. 22, Canada’s largest law society, the Law Society of Upper Canada, webcast its debate on the future of articling. For the first time since 1797, the public caught a glimpse of the profession’s elected leaders going at it full throttle over the pressing issue of our day.

“Top lawyers fear their profession is broken,” the headline in The Globe and Mail proclaimed afterwards.

If you are contemplating a career in law in Canada, or are already in the pipeline toward your call to the bar, the articling debate revealed some stark truths about the state of the legal profession — as well as cause for optimism.

Cameras in Convocation

When democratic assemblies opened their debates to TV cameras more than 20 years ago, concerns about parliamentarians playing to the audience were soon allayed once it became clear the folks at home would not tune in to watch. Today, our media-trained politicians are better at capturing the five-second sound bite. They still play to the media, not to the public. Apart from avoiding being caught snoozing on camera, most of our elected representatives know if they want the public attention, they have to perform — nothing so bad, in that.

In cyberspace, where the 140-character haiku is king, most commentators decried the long speakers list with rambling, repetitive speeches, without alternation between proponents and opponents. The law society is not a town hall, it is a government in session.

There were two clearly defined sides to the debate: the majority who favoured preserving articling and supplementing it with a training program for those unable to find a job, and the minority who called for the abolition of articling. The two camps ought to have co-ordinated their efforts and approached the chair to come up with a planned speakers list of two per side, speaking for an extended time, followed by speeches from the floor.

Law students and the cause-and-effect of self-interest

At a basic level, it’s all about the students. There are more of them than there are articling jobs. Not unexpectedly, there is a tremendous level of expectation, even entitlement, behind a desire to sweep away licensing requirements or perceived barriers.

Many point to the high levels of student debt, but are unsure of the role it plays in the articling crisis. My annual third-year law school tuition in 1988 was less than $3,000. According to the Bank of Canada’s inflation calculator, that translates to about $5,000 in 2012 dollars — not $25,000. It is no accident that the prized Bay Street articling jobs pay in net salary an amount similar to three years of law school, and that many smaller firms can no longer afford articling students.

In the general labour force, the cost of living drives salary demands. In articling, it is the cost of debt. This has replicated the experience of Wall Street first-year positions. The cost of opening up an entry-level job in our profession is mostly driven by law school tuition, rising at five times the rate of inflation. Is it any wonder the profession cannot meet surging demand among candidates?

Law schools, for their part, charge tuition in accordance with what their market can bear. Law professors, for example, have not experienced wage increases matching the rise in tuition fees. Even at $25,000 per annum, the Ontario public purse still subsidizes students’ tuition. Law students are prepared to pay, and pay they do.

Law students do not hold sit-ins at university presidents’ offices to protest tuition hikes. Until the public subsidy reaches zero, there does not have to be equilibrium, provided students continue to apply. In fact, U.S. law schools have proven students are prepared to cough up $50,000 or more per annum, so Canadian schools can probably raise rates without much drop-off in demand.

From an economic perspective, firms’ inability to keep up with demand for articling positions is not a cause but a symptom of the articling crisis. For cause, you have to look at the beginning, not the end, of the chain of events. Law students have yet to reach the Oedipal moment of Walt Kelly’s comic strip hero Pogo, when he said: “We have met the enemy and he is us.”

Scratch beneath the elementary economics and you might also see the human element of the demand for entry into the profession. Read enough CVs and you’ll have noticed that all candidates were straight-A students in undergrad, and A and B students in law school. For many candidates, the difficulty in securing an articling position is the first time they will have experienced failure.

So what is the lesson for would-be lawyers? The market for legal licensure, from Year 1 of law school to the call ceremony, has likely reached its equilibrium. The unwillingness of the profession to foot the bill for student debt will cause repercussions all the way down the feeding chain. University administrators ignore this reality at their peril.

The profession did give back a very significant concession, in the form of a new practice education program to permit candidates to sidestep articling. We will all be paying for it. We should, for the good of the profession.

If I were a candidate in such a program, I would not wallow in the angst that it is somehow a second-tier path to becoming a lawyer. Take the course with diligence and perseverance, and the program will likely stand you in good stead — perhaps even better than articling.
Advocates and climate change

Our preoccupation with the plight of candidates has distracted us from more fundamental changes in our profession. Interestingly, outside of Ontario, lawyers have been talking about these changes for some time. Much of it has to do with the global trends in transactional law, such as mega firms and outsourcing. In litigation, too, there are changes afoot which anyone seeking a legal career should take the time to research.

Number one on the watch list? For advocates, it’s personal injury law. Whether or not winters are getting warmer, ski hill operators will tell you they’ve had to spend more on snowmaking equipment and swimming pools. The decline in precipitation in southern Ontario during the winter months means fewer landlords will be sued for failing to keep their parking lots cleared and salted. Fewer car crashes will take place, due to lower incidence of ice and snow.

Combine the decrease in serious accidents with the improvement in vehicle safety, as well as an adjuster and paralegal-driven no-fault system, and you will see we are witnessing an area of practice in considerable decline.

Need proof?
Example 1: The Personal Injury Alliance, whose principals appear on the cover of the current print issue of Canadian Lawyer. Why would lawyers from the busiest, most respected firms in the injury law bar form a marketing alliance and splash out on a TV campaign? It is intended to create demand, not just divvy it up.

Example 2: Who can name and count, beyond the fingers on your hand, the leading defence lawyers in the personal injury field who are still in practice? Then go look at the roster of mediators in the Ontario Reports, or similar legal referral publications. It is a case where the captains have been the first to abandon ship.

Transactional lawyers

A few benchers spoke during the articling debate about the lack of emphasis on the education of transactional lawyers performing solicitors’ work in firms, companies, and government. If clients did not know already, they know now that the profession does not really have a comprehensive educational plan to teach lawyers how to prepare sophisticated transactions. The conventional wisdom is law schools do not teach students what they need to know to practise law, and “most of what they teach, you’ll never use.” There is some truth in that. But spend some time talking about this gap with top law profs. They may convince you the “you’ll never use” it part is not their fault, but ours.

We teach law at a high level, but our graduates rarely get to apply this discipline in real practice. Michael Trebilcock may have taught you how to use a quadratic equation to devise the most advantageous licensing agreement for your manufacturing client, but the highest level of math you’re likely to use as a lawyer is the fraction describing what your client gets compared to the other lawyers’: what you learned in Grade 3.

As a profession, we have not been all that good at harnessing the vast knowledge of our academy, even though the schools pump out candidates with As and Bs, having studied from the best. A large part of our legal brain drain does not come from graduates heading south of the border.

Occasionally, lawyers do create works of art. Canadian telecommunications networks, resource companies, and transportation companies are, in terms of legal work, like Fuller’s geodesic domes: beautiful, sometimes improbable, and incredibly strong. For the most part, however, we do not have the confidence to employ what we have learned in our everyday practice. This is unfortunate. It is a waste of our investment in the individual lawyer, and in her hopes and dreams to make a difference.

It is no secret that most benchers and leaders of bar associations come from the ranks of barristers. Transactional lawyers are underrepresented in legal governance. The traditional image of legal tutelage, the one I grew up with, was that of “carrying a barrister’s bags.” Do articling students and junior lawyers get one-on-one training with an experienced lawyer on the preparation of commercial transactions? Do they have the entrepreneurial instincts required to prepare a business agreement that is good for the contracting parties, both from a legal perspective and a commercial one? Do the senior members of the transactional bar encourage newer lawyers to use what they learned in law school?

A lucky year ahead for millenials?

2012 draws to a close at a frightening time for law licensing candidates and new lawyers, but also at a time where opportunities abound to break old moulds. If you think of the legal profession as just a job, you may end up not having one. If you think of it as a calling and a vehicle for channelling your smarts and determination, your lucky number will most certainly come up in 2013.

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