At the annual conference of the Association for Canadian Clinical Legal Education at Osgoode Hall Law School on Sept. 24, a panel told the crowd that articling in its present form is no longer sustainable. For example, Law Society of Upper Canada Bencher Tom Conway, chairman of the task force on articling, provided statistics showing that more than 12 per cent of law school graduates in 2011 couldn’t find an articling position.
The cause of this high unemployment rate is threefold. First, Ontario law schools have increased the number of law students. All of them, in fact, have boosted their numbers, particularly the University of Ottawa. The number of graduates will increase even further when the new law school at Lakehead University comes on stream.
Second, more and more international law graduates are seeking accreditation in Canada. The University of Toronto has gone as far as creating a special program for international law graduates.
Third, despite the best efforts of the law society, law firms haven’t increased the number of articling positions to keep up with the influx of new graduates.
The law society’s task force on articling has its work cut out for it as it explores its options. That’s where efforts at law school curriculum reform in the United States can have an impact in Canada.
In 2007, the Carnegie Foundation for the Advancement of Teaching released a study on legal education in North America. It found that while law schools do an admirable job of teaching legal theory, they’re not paying enough attention to preparing students for the profession of law in ethics and practical skills.
The Carnegie report recommended an integrated curriculum for law schools. The idea would involve teaching what it calls “the three apprenticeships” of cognitive learning, ethics, and practical skills throughout law school. In a recent speech to the Canadian Bar Association, Governor General David Johnston, a former law dean himself, endorsed the Carnegie report’s approach.
U.S. law schools have taken up the Carnegie report’s recommendations with enthusiasm. For example, Harvard University now offers a problem-solving workshop during first year. The Washington and Lee University School of Law has implemented perhaps the most radical reforms by making third year entirely experiential learning with strategies such as clinics, externships, and simulations.
In Canada, the reaction to Carnegie has been silence. Only Osgoode has taken significant steps towards implementing Carnegie through its announcement that, starting in 2012, students must take an experiential learning course in order to graduate.
I suggest that the articling conundrum in Ontario has a potential solution in the implementation of the Carnegie report in our law schools.
For example, the law society could agree that if law students took a certain number of credits in clinical or other courses that teach ethics or practical skills, they wouldn’t need to article or could have a reduced articling period.
Another option is for law schools to offer a capstone course like those offered by the University of Minnesota, Southwestern Law School, and Duke University School of Law. These intensive courses integrate practical skills with doctrinal learning.
A third option could be a simulation like the one run for Scottish law graduates at the University of Glasgow. For a few months after graduation, law students take part in a virtual law firm in a fictitious town. They go to an office, open files, and carry out transactions or lawsuits on behalf of fictitious clients.
All of these options involve implementing the Carnegie report in one form or another.
I don’t foresee the abolition of articling, at least not in the short term. But these options can be available as an alternative to the traditional articling period. Some students may even prefer them to articling.
There’s no reason why law schools, with the participation of members of the private bar, can’t teach the skills provided by articling. Doing so would create stronger links between the private bar and law schools.
The law society and the law schools need to work together to find a solution. The status quo is not an option.
Doug Ferguson is a lawyer and director of the Community Legal Services Clinic at the University of Western Ontario Faculty of Law.