The elusive brass ring

The elusive brass ring
A growing shortage of articling positions has left hundreds of law grads saddled with the prospect of having run up massive student debts for a shot at a profession that has no room left at the inn. The problem — primarily concentrated in Ontario, although British Columbia appears to be experiencing a minor shortage as well — has a simple explanation. More prospective lawyers than ever before are seeking entry to the legal profession, especially practitioners trained outside Canada. Stats show that in 2006, the Law Society of Upper Canada accepted 1,400 registrants to its licensing program. That number spiked to 1,750 in 2010. Meanwhile, in 2008, 5.8 per cent of applicants failed to secure an articling position within their first year of eligibility. That number rose to 12.1 per cent in 2011.
More alarming is the fact the shortage threatens to grow in the years ahead, with the University of Ottawa’s law school spitting out 100 additional graduates starting next year. Another flood of licensing candidates will soon descend on the profession from new law schools at Thompson Rivers University in Kamloops, B.C., Lakehead University in Thunder Bay, Ont., and the University of Montreal.

All of this is to say that, for many budding lawyers in Canada, articling — that mandatory bridge between law school and actually practising law — has now become a barrier rather than a stepping-stone to a career. But at the same time, recent law grads who’ve been left in the lurch may take heart knowing senior members of the bar have heard their cries.

In May, the LSUC announced plans to create an articling task force to tackle the issue, much like it did in 2008, when the task force on licensing and accreditation balked at the idea of abolishing the articling process after an overwhelming response from the profession. “For some years, the law society has been concerned with issues relating to articling and, in particular, the growing number of unplaced candidates,” LSUC Treasurer Laurie Pawlitza told law society benchers in announcing the new study. “This is a discussion that will overtake Convocation for some months.”

University of Ottawa law professor and former LSUC treasurer Vern Krishna, who led the 2008 study and will be part of the new articling task force, agrees the situation is now as dire as ever. “The supply of students seeking entry into the profession is increasing, and the demand for articling students had not kept pace. So we’ve got a problem,” says Krishna. He points out that a further complication comes from the fact that the vast majority of articling positions in Ontario are concentrated in Toronto and Ottawa, with smaller firms in outlying areas unable to make a business case for the addition of students. This is despite the fact that the law society created the concept of joint articles, which allows two or more law firms to share the burden of taking on a student for the 10-month articling term. Aside from the expense, some suggest lawyers in smaller centres are reluctant to take on students for fear that, once fully licensed, they will proceed to set up shop across the street and poach clients.

But there’s also the fact students are drawn to the perceived glitz and glamour of Bay Street. “There are some places, like Thunder Bay, which want articling students, but nobody wants to go there,” says Krishna. “So it’s not only what the firms want, it’s what the students want, and where they want to live.”

All of this, says Krishna, has prompted the law society to go back to the drawing board and determine whether articling is the only viable way to ensure new lawyers are up to snuff. “The critical test is not, ‘Articling or not articling.’ The critical test is, ‘How can we ensure the competence of those who are licensed and qualified as lawyers to render services to the public?’ That is the question that has to be answered, and articling is a means towards that end. The question that we have to address is, ‘Is that the only means to the end?’” Krishna says he and the task force will approach the subject with an open mind. The law society has given it $75,000 to go about its work. A final report is expected by May 2012.

Alan Treleaven, director of education and practice at the Law Society of British Columbia, says it’s difficult for the LSBC to track articling shortages due to its integrated approach to admissions that sees candidates first acquire an articling spot before entering the admissions stream. “We know that there’s been a gradual rising trend in the number of students in B.C. in the program each year,” he says. “But it doesn’t tell us, on the face of it, whether there’s that gap that Ontario would know on the face of it.” He says the law society works with the B.C. law schools to determine whether they’re having any significant problems placing students, “and they haven’t been having them,” he says. Treleaven adds that the LSBC doesn’t want the articling requirement to serve as a barrier to entry to the profession.

Luckily, it seems the issue is not a huge problem across Canada. Marie-Claude Bélanger-Richard, president of the Law Society of New Brunswick, says law grads there are not having any problems obtaining articling positions. “Last year, there might have [been] two students who, at first, did not have an articling position, but after some ads in our monthly newsletter, they were able to find a position,” she commented in an e-mail. Meanwhile, Rose Godfrey, admissions and career development director at the Schulich School of Law at Dalhousie University, says Atlantic provinces in general are not experiencing a shortage. However, students from schools in the region are finding it tougher to get hired in Ontario this year, says Godfrey.

Treleaven says the Federation of Law Societies of Canada will be looking at alternatives to articling at a September meeting in Prince Edward Island. Those talks are part of a wider discussion on the creation of uniform standards for admission to the profession by all Canadian law societies, to ensure full mobility of lawyers across the country.

While it’s unclear which alternatives might be on the table in P.E.I., the approach of other Commonwealth countries will likely be featured. New Zealand, for example, has gained notoriety for its Professional Legal Studies course, which sees LLB graduates do a few months of practice training on topics such as drafting, trial preparation, advocacy, mediation, and professional practice and responsibility. U.K. students must go through the Bar Professional Training Course, which involves one full year or two part-time years of practice simulations, practical training, and other skills development. A U.S.-style bar exam system is also an option.

Many lawyers view articling as a deeply rooted tradition that must be preserved regardless of short-term consequences. Treleaven, for one, does not subscribe to that belief. He says law societies in Canada must act in the public interest to ensure newly called lawyers have effective, hands-on training that includes exposure to providing legal services to real clients. “Articling is the vehicle through which we’ve chosen to do that,” he explains. “Any change that we make in the admissions process, if you ask us the question, ‘How does that serve the public interest?’ we’d better have a good answer.”

Queen’s University Faculty of Law dean William Flanagan says another key consideration in the discussion over articling’s future is that students’ experiences vary widely depending on the firm that takes them on. It’s tough to argue that a student at a well-resourced Bay Street firm receives the same training as one working under a sole practitioner. Flanagan says better-resourced firms offer students the kind of mentorship that the articling experience intends to foster. That may not be possible, however, at all smaller firms, where there’s neither time nor money for that same type of training. “That’s an important thing to take into account — that articling is not necessarily a uniform experience,” he says. “In some regard, it’s a bit of a limousine model of training. It’s costly; it requires a considerable investment by the firm in training an articling student. It’s an expensive model to train legal professionals, and it can have excellent outcomes. But I guess the question is, has it become too expensive? Can we afford to provide the number of articling spots that we need? And are we providing a pretty good, uniform experience as articles? Those are really questions I know the law society is committed to examining.”

At the end of the day, Flanagan basically believes it’s unfair to bring a student through law school and fail to make room for them in the profession for any reason other than the fact that they’ve failed to pass the bar exams. “If they can’t qualify just because there are no articling positions, I’m not sure that’s fair to that applicant,” he says.

On top of it all, the growing shortage of articling spots doesn’t seem to be confined to any specific segment of the law school population. Dean Mayo Moran of the University of Toronto’s Faculty of Law says for the 2008-09 articling term, only two or three per cent of the school’s students failed to land a position. For 2010-11, she says the number remains “well below 10 per cent, but there is an increase.” Notes Moran: “Given what it takes to get into U of T law school and the reputation, if those students are having trouble, then other students are as well.”

Moran has traditionally been a staunch backer of articling, but is now willing to concede that it is timely for the law society in Ontario to look at alternatives. She applauds Pawlitza for striking the new task force, but Moran continues to advocate for the program’s continuation, despite the current shortage of positions. “I’ve always been a fan of articling,” she says. “It’s a very good partnership between the profession and the academy, and I think we do well what we do, and then the profession does the initial stage of hands-on practical training. It’s been a great partnership that’s led to an outstanding legal profession. I would be sorry to throw the baby out with the bathwater because there are problems with it.”

U of T’s dean acknowledges that schools have some responsibility to help students land an articling position. She references the ongoing debate in the United States, where law schools are criticized for accepting students, despite knowing full well that job prospects are dim following graduation. Some have said it’s immoral for schools to accept hefty tuition from students in such circumstances. “We’re not in that position in Canada, but I do think we need to be responsible with the way that we admit classes,” says Moran. “Once we admit people, we need to support them and help them find employment. I think we need to encourage the profession to offer articling positions, because the number of places offering articling has shrunk basically to government and large firm private practice.”

Moran notes that law schools have fixed costs, and there are always incentives to boost enrolment based on that reality. “At the same time, you don’t want to take on students where there’s no prospect of them getting work,” she says. “I don’t think anyone’s doing that, but I wouldn’t want to see that happen.”

Students are also quite fortunate that large firms have been eager to take on the heavy burden of helping bookend their training. Each year Canada’s large and mid-size firms usher in a fresh crop of students, with many of the top firms offering extensive training regimens for their hires, on top of the legal work for which they are typically well compensated. Some may look at this massive investment by firms as an unfair burden. After all, it’s the law societies that require completion of an articling term, and the law schools that bring students to that point in their training. Nevertheless, large firms appear steadfast in their support of the articling requirement. “From our perspective, students represent our firm’s greatest source for future associates and partners,” says Natalie Zinman, director of student programs at Gowling Lafleur Henderson LLP in Toronto. “We look to our students as the pool that we wish to recruit from. As a result, it’s important for the firm to give our students a rich and rewarding learning experience.”

Zinman wouldn’t say whether she thinks it’s fair for firms like Gowlings to carry the majority of the burden in training Canada’s budding lawyers. “I’m not comfortable answering that one. We invest in students because we believe that it’s an important commitment to the practice.”

She also says it’s too soon to comment on whether it’s worthwhile to pursue alternatives to articling. “We’ll have to see what the working group from the law society proposes, and the feedback that they receive from the benchers and the bar, and the consultations that they do with students who are seeking positions,” says Zinman. “Historically, Gowlings has supported the development of students into lawyers, and we expect to take this position and support the law society as it moves through this process.”

Michael Johnston, a Brockville, Ont., lawyer who represents many of Ontario’s small-town lawyers as president of the County and District Law Presidents’ Association, says it would be ideal for each law firm — big or small — to take on at least one articling student each year. He applauds the LSUC for creating the joint articling program, which helps small firms and sole practitioners address the affordability and mentoring issues that crop up when weighing the benefits of taking a student on. He also notes that many older lawyers in small centres are actually eager to attract articling students as potential successors when they wind down their practices. “Unless there are the young lawyers, who have to go through the articling process, there may be greater challenges in the future,” says Johnston. He believes there’s more to the problem than a lack of resources in the rural bar, although it certainly plays a part. “Possibly, the larger centres, the larger firms, may have a certain appeal to students, and part of that may be the mentoring, part of that may be the type of work that they’re going to be exposed to. That’s not to say that they wouldn’t be exposed to the same thing in a smaller community, but it’s more difficult for firms in smaller communities to take on articling positions, and part of that is a question of affordability. You can only bill what the market will bear.”

Stephanie Sugar, president of the University of Western Ontario’s Student Legal Society, agrees that law students may need to “expand our scope a little” and consider opportunities beyond Toronto and Ottawa, even if they’re few and far between. “I don’t know that students necessarily give those other options enough consideration,” she says.

At the same time, Sugar is reluctant to suggest that articling should be discarded on account of the current shortage of positions. She points to the lack of practical, hands-on experience afforded by law schools. “Many students would agree that to lose articling altogether is a real disservice,” she says. “I don’t know that students would feel confident going out and practising and being licensed without having some kind of experience. So however it is that we need to work it out, I think it’s important to keep the articling.”

Yet Queen’s dean Flanagan believes it’s essential the profession takes a serious look at the consequences of not adequately probing alternatives. “If we don’t, what we’re really saying is we’re now placing an artificial cap on the number of people who gain admission to the profession. A cap that is really unrelated to anything other than the availability of articling positions, which doesn’t really relate to the need for legal services. It’s just a question of which firms can afford to hire articling students, and I don’t think that’s the best way to determine entry to the profession.”

There are those who will say all of this concern about outcomes for a relatively small segment of the law graduate population is unwarranted. They may allude to other professions, such as teaching and nursing, that in the past have impressed upon students the fact that the job market is tough, and they may not land the position they want after their training. “That’s one option,” says Krishna. “But I think that’s an option that should prevail regardless of what method you have. We are not guarantors of success in becoming qualified. Our body is a licensing and regulatory body. It’s concerned with ensuring competence.”

Unfortunately, the “no guarantee” approach does not solve the problem. Krishna notes that most candidates will simply look at such a warning and conclude that it won’t apply to them, but rather the person sitting next to them. “I don’t like to use words like ‘crisis’ because I think they can be used too easily and too often,” he says. “But it is a pressing problem, and it is not one that is likely to abate if left untouched. . . . Even if we decide to do nothing, we should address it. Doing nothing should be an informed decision to do nothing, rather than a decision that results from apathy or inactivity.”

There are likely to be more than a few law students who read this article and question the sanity of running up massive debt in pursuit of a career in a profession without a guaranteed job. It will be encouraging for them to hear that Flanagan believes there is something different about this round of LSUC investigations into the future of articling. “My sense is that the law society is very serious about it this time,” he says. “They want there to be fair and equal access to the profession for all who are qualified. That means we need to rethink articling.”

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