To article or not to article?

To article or not to article?
Illustration: Alexi Vella
It’s a capstone to legal training in Canada, a (mandatory) rite of passage that allows law students to prove they not only have the academic chops to become full-fledged lawyers, but also the nimbleness to effectively serve their clients in the real world. Unfortunately, for many budding lawyers in Canada, articling — the “bridge” between law school and full-blown legal practice — has now become a barrier to reaching their professional aspirations.
Simply put, a 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 straightforward explanation. More recent law graduates than ever before are seeking entry to the profession, especially foreign-trained lawyers. 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 pushing 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 Quebec’s University of Montreal.

Luckily for those recent law grads left in the lurch, the profession has heard their cries. The LSUC in May announced plans to create a working group 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 benchers in announcing the new working group, “This is a discussion that will overtake Convocation for some months.”

LSUC life bencher and University of Ottawa law professor Vern Krishna, who led the 2008 task force and will be part of the working group, agrees that 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 the situation is further complicated by the fact the vast majority of articling positions in Ontario are concentrated in Toronto and Ottawa, with smaller firms in other areas unable to make a business case for the addition of students. This despite the law society allowing “joint articles,” which lets two or more law firms share the burden of taking a student on for the 10-month articling term. Aside from the expense, some suggest lawyers in smaller centres are reluctant to take on students for fear they will then go and set up shop across the street and poach clients once they’re called to the bar.

At the same time, students seem 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 working group will approach the question with an open mind, and don’t expect to come up with an answer any time soon.

Alan Treleaven, director of education and practice at the Law Society of British Columbia, notes the Federation of Law Societies of Canada will address the issue of alternatives to articling at a September meeting in Prince Edward Island. Those talks will come as 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 what alternatives might be on the table at the P.E.I. meetings, the approach taken by other Commonwealth countries will likely be featured. New Zealand, for example, has gained notoriety for its Professional Legal Studies course, which sees LLB graduates complete a few months of practice training on topics such as drafting, trial preparation, advocacy, mediation, and professional practice and responsibility. The U.K. utilizes a Bar Professional Training Course that 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 has also been raised as a possible option.

Treleaven says it’s a bit difficult for the LSBC to track any articling shortages in the province, 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.

Many lawyers have come to view the articling requirement 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.”

William Flanagan, dean of Queen’s University’s Faculty of Law, points to another key consideration that should be part of the discussion over articling’s future: articling terms vary widely depending on the type of firm for which students apprentice. It’s certainly tough to argue that a student at a well-resourced Bay Street firm receives the same experience as one working under a sole practitioner in a small town. Flanagan suggests the better-resourced firms offer students the kind of mentorship the articling experience intends to foster. That may not be possible, however, at smaller firms where each minute and dollar must be squeezed to turn a profit. “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.”

Michael Johnston, a Brockville, Ont., lawyer who represents many of Ontario’s small-town lawyers as president of the County & District Law Presidents’ Association, says it would be ideal for each law firm 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. He also says many older lawyers in small centres are 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. “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 because 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 Flanagan believes it’s essential for the profession to take a serious look at the consequences of failing to probe 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.”

It will be encouraging for law students 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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