MacKenzie’s helpful contribution to articling debate

Former Law Society of Upper Canada treasurer Gavin MacKenzie has shaken up the articling debate with his call for consideration of a third option this week.

According to the results so far of the latest Law Times online poll, more than 75 per cent of respondents agree with MacKenzie’s call for consideration of leaving articling as is with financial incentives to boost the number of positions.

Those numbers largely align with previous Law Times polls that suggest many readers weren’t happy with either the articling task force majority’s proposal for a law practice program as an alternative or the minority’s suggestion to abolish articling in favour of a transitional training program. Sixty-five per cent of respondents opposed the minority option while 74 per cent disagreed with the proposal for a law practice program.

In a recent Law Times editorial, I called the majority’s proposal a reasonable compromise. It’s been clear all along — and the most recent poll confirms this — that the profession retains its attachment to the articling system. The majority proposal keeps articling while offering those unable to find a position an option to get their licence in another way.

This option is an imperfect one, especially given the very real concerns about a two-tier system that would potentially disadvantage those who take the law practice program. However, as a pilot project, the majority proposal quite reasonably offers the chance to see how the program works out and cancel it if the problems are too great.

On the other hand, it’s easy to see how, despite being a pilot project, it would be difficult to cancel it given institutional pressures to maintain what we already have. At the same time, MacKenzie’s suggestion to consider some sort of financial incentive is a good one. Certainly, we could accomplish other goals such as improving access to justice and increasing the availability of legal services in areas that need them by focusing the financial incentives on positions at legal clinics and pro bono organizations as well as rural areas and smaller communities.

The challenge, though, is to determine whether the profession is willing to pay for that. The financial incentives would have to come from somewhere. Already, the task force majority has proposed having students with articling positions essentially subsidize those who take the law practice program through the licensing fee. Presumably, the cost per person would be much lower if spread across the profession. But are people willing to pay it?

In addition, any program to provide financial incentives for positions in non-profit settings and communities outside the big cities would also entail an acceptance by law school graduates that they won’t necessarily be able to get a position at a major law firm.

Finally, the question remains as to whether the profession is willing to accept that the financial incentives won’t necessarily provide a position for all graduates. The shortage of positions in Ontario is too high, but what would an acceptable rate of unplaced candidates be?

We’ll see during tomorrow's debate how law society benchers react to MacKenzie’s suggestion. There may be major impediments to his idea, but at least he has helped broaden the debate to consider something a lot of people have been wondering about. His suggestion might also provide a viable option for a pilot project the law society could then revisit in a few years to see if the more radical move to abolish articling would be the way to go.

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