Unpaid articling legal, but is it ethical?

Unpaid internships are becoming rampant in North America but the ethical debate surrounding them is gaining strength too.
The legal profession is not exempt. On May 28, the president of the American Bar Association wrote a letter to the U.S. labour solicitor asking for the Fair Labor Standards Act to make it clear that unpaid internships for pro bono cases are allowed.

“[W]e believe that the language of the FLSA does not clearly, on its face, permit or prohibit pro bono internships with private law firms or business law departments related to purely pro bono matters in which the firm or business has no anticipation of revenue,” wrote ABA president Laurel Bellows.

“The ABA agrees that exploitation of law students and other interns is unacceptable; however, the FLSA uncertainty inhibits law firms from offering students the opportunity to work on pro bono matters in a real-life practice setting,” she added.

The issues surrounding unpaid internships have been widely debated in Canada as well, especially in light of the growing articling crisis. With fewer law firms hiring articling students and more students graduating from law school every year, working for free may be the only option for some. Several students have even posted on Craigslist offering to work for no compensation.

But some argue students should not have to work for free.

“Irrespective of the recession, we could reduce the salary but I personally do not think that we should eliminate it completely,” says Kaniz Sattar, who was trained as a lawyer in England and now lives in Alberta. “It will lead to exploitation. I think there are some firms that are very good and they probably wouldn’t do that, but then there are other firms that would exploit that.”

She witnessed a comparable situation in England.

“We had a similar system in the U.K. and it just created elitism, and that’s the reason the U.K. decided to pay the students,” she says.

Ryan Edmonds, a first-year associate in the labour and employment group at Heenan Blaikie LLP, says there are other options besides working for free, adding some of his friends who couldn’t secure articling positions by graduation took a year off to do other things and then reapplied for articling positions the following year.

The Ontario Ministry of Labour recently released a bulletin to clarify the legalities of unpaid internships.

It states anyone who is considered an employee — in other words “if you perform work for another person or a company or other organization and you are not in business for yourself” — is covered under the Employment Standards Act and entitled to its protections. However, if all of the following six conditions are met then a person is permitted to work as an unpaid intern:

1. The training is similar to that which is given in a vocational school.

2. The training is for the benefit of the intern. You receive some benefit from the training, such as new knowledge or skills.

3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.

4. Your training doesn’t take someone else’s job.

5. Your employer isn’t promising you a job at the end of your training.

6. You have been told that you will not be paid for your time.

Articling students are not protected by the ESA as they are students in training for a professional occupation (law) that is exempt from the hours of work, overtime, minimum wage, public holidays, and vacation with pay sections of the act.

“If you have this narrow exemption carved out, which is probably really just to speak to the insane hours that articling students work, but instead it’s being turned around and used to provide actual productive work for no compensation, that’s a real problem,” says Edmonds.

Sattar says not paying students will also have a long-standing effect on the profession as a whole.

“In the long term, it’s not good for the legal profession because we won’t have as much diversity, it won’t promote the same equality; there’s only going to be certain types of people that are going to be able to afford to [work for free],” she says.

Laura Colella, senior reviewer analyst at the Commission for Public Complaints Against the RCMP, says it’s OK for students to work on pro bono cases without pay, but there should be a time limit on it. 

“For students to work for free, it has to be on a limited basis,” she tells 4Students. “It assists the legal world to have students involved in this. It permits law firms to take more pro bono cases [by having] a team of students working with them.”

Sattar says firms should value their students: “It should be a mutual relationship with the students and the firms, rather than the firms acting as though, ‘Oh we’re doing you a favour, you’re doing voluntary work for us, you’re working pro bono.’”

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