A bedrock ethical obligation

Philip Slayton
Even the brightest law school graduate will likely find himself adrift when he starts to practise his new profession. He may have got a bunch of As in law school — he may have been a whiz at torts and know the Charter of Rights upside down and backwards — but he won’t be the slightest bit prepared for the demands and drudgery of daily law practice. The first day on the job can be quite a shock to someone used to thinking of himself as highly competent and super-smart.

Helping articling students and junior lawyers get off to a good start is a bedrock ethical obligation of the profession. Doing so contributes to the integrity of the justice system and protects the profession’s future as a respected and important contributor to the well being of society. Nothing is more important. Almost all lawyers would agree with this sentiment, but many do not contribute to its realization.

In part that’s because the mentoring thing is not easy. The care and feeding of lawyers starting out, just like bringing up children, is a big job. A legal tyro doesn’t ease the workload of her supervising lawyer; she increases it. Proper guidance of an articling student or junior lawyer requires endless explanation of the law, heart-to-heart conversations about anything and everything, marking up memos and correcting draft documents, taking the junior to court appearances or client meetings (and maybe lunch), introducing the idea of law as a business as well as a profession, helping resolve complex ethical issues that sometimes arise — and that’s just the half of it. Understandably enough, some lawyers recoil from taking on these burdens.

If you do assume the burdens, you’ll pay for it in more ways than one. It’s not just the aggravation; there’s a dollar cost. The time you spend mentoring is not legitimately billable — it’s properly part of your practice’s overhead — and it goes without saying that very few clients are prepared to pay for the hours put in by the young lawyer who’s learning what to do. I’ve noticed in the past that in big firms the job of supervising beginners generally falls to those with only a few years under their belt; the most senior lawyers are too busy and important to bother with it, and their time (read hourly rate) is too valuable to be spent this way.

Big firms, of course, can deal with this effectively if they feel so inclined. They have a lot of manpower, and there’s always someone willing to take a beginner under her wing (although some lawyers do this a lot better than others). It’s quite different in a small firm, or a solo practice, where resources are thin. Then, there is a powerful temptation to let the articling student or first-year lawyer sink or swim by himself — indeed, even worse, to assign him legal tasks beyond his competence. In some cases, this trial by fire might be the making of the budding lawyer, encouraging resourcefulness and instilling independence. In others, disaster results, with files bungled and legal development stillborn. The simplest thing for a small firm or solo practitioner is not to take on an articling student or very junior lawyer, and the statistics bear out this is what happens more often than not.

And that’s leading to the increasing problem of law graduates who can’t get an articling position at all. In Ontario, as many as 15 per cent of those leaving law school are stranded in this way. How are they to be helped to develop as professionals? What are they supposed to do? The Law Society of Upper Canada’s recent solution to the problem is a very bad idea. In November, the society approved an alternative to articling called the law practice program. Details of the pilot program are sketchy, but there will be some kind of course lasting four months, followed by a four-month co-operative work placement. Implementation of the scheme will be contracted out to a third-party provider; the law society says it does not have the expertise to structure and run such a program, an odd admission by the regulatory body charged with deciding the qualifications needed for admission to the bar.

Critics of the LPP — and there are many — quickly pointed out that those who go into the program because they can’t get an articling job will inevitably be branded as second-class lawyers. Furthermore, there are no quality assurances for the LPP educational component, to be offered by an as yet unidentified third-party provider, or for the vaguely conceived apprenticeship that will follow. Finally, chances are the work placement will be unpaid, adding yet more financial strain for a law graduate likely already laden with debt. The cobbled-together LPP program forsakes the profession’s fundamental ethical obligations to train and support equally and properly all young lawyers beginning their careers.

True enough there is a scattering of lawyer mentorship programs in Canada. Most provincial bar associations have one of some kind. Ontario, for example, has a Practice Management Helpline (416-947-3315), and the Practice Mentoring Initiative, which “connects lawyers with experienced practitioners in relevant areas of law to help them deal with a complex substantive legal issue or a specific procedural issue outside of the . . .
Practice Management Helpline mandate.” There are various informal mentorship initiatives here and there, and big firms generally advertise some kind of program. But all these are not much more than “call a friend” schemes.

True mentoring, in the biggest sense of the word, is an essential ethical obligation of the legal profession. There is no substitute for the experience of Telemachus in Homer’s Odyssey, who received crucial advice from his trusted adviser and guide, whose name was Mentor.  

Philip Slayton’s latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is now available in paperback. Follow him on Twitter @philipslayton.

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