A year of missed opportunities

For lawyers in Ontario, 2018 will be the year where major opportunities were missed.

Fernando Garcia

For lawyers in Ontario, 2018 will be the year where major opportunities were missed.

The traditional legal model is no longer sustainable. With the increasing number of in-house and boutique law firms, traditional Bay Street firms are no longer where most law graduates complete their articling.

The clients are also changing. The growing body of in-house counsel, especially those who are increasingly developing the skill-sets of the T-shaped lawyer, are demanding more from their external counsel and, in many cases, are bringing more of the work in-house. 

Finally, we live in a time when young, eager lawyers cannot find articling placements, while thousands of people go without legal representation, creating an access-to-justice crisis.

Ontario and the Law Society of Ontario have missed their opportunity to make a strong and bold impact.

In Ontario, while the deficit should be reduced and all government spending should be carefully evaluated, cancelling the support for the Ryerson Law School was a penny-wise, but pound-foolish decision.

The idea behind the Ryerson law school was to fundamentally change the practice of law, through building tech savvy, well-rounded, practice-ready, T-shaped lawyers. While other law schools are evolving and adopting much needed change, Ryerson Law would have put this change into overdrive. As a champion of diversity and innovation, Ryerson was looking at developing future lawyers able to tackle some of the most important issues of our time, mainly the disparity in access to justice. 

For many advocates of “law 2.0,” the rejection by the government to support the development of the new law school was a major set back for those who support its radically new pedagogical approach.

The second missed opportunity occurred on Dec. 10, when, faced with the opportunity to fix some of the fundamental deficiencies surrounding the articling program in Ontario, the LSO put a band-aid on a critical problem.

While there is a shortage of articling positions in Ontario, the LSO increased the costs of taking on an articling student (by requiring a minimum-wage payment) and by making it more difficult to become an articling principal (requiring courses and training and adding the potential of an audit).

While I understand that students are being forced to make substantial financial sacrifices, increasing the cost for some – mostly smaller law firms – will further reduce the number of available articling roles. This will delay the “check-the-box” requirement for law graduates to be licensed as lawyers. Don’t get me wrong, their heart was in the right place and it is fair, where possible, to properly compensate articling students for their work. Unfortunately, these initiatives will only aggravate the problem by shrinking the number of articling positions. A better idea is to allow graduates to take one year off from paying income taxes for every year spent in law school or any graduate program.

I am also a strong advocate against the bar-admissions program and for abolishing the LSATs. We should eliminate the bar exam for law students completing their legal education in Canada, as these types of examinations are not reflective of a lawyer’s knowledge or their ability to properly represent a client and may have a discriminatory effect on students from diverse backgrounds. They test the ability of the individual to write a test and force students to unrealistically cram multiple practice areas into one exam. This is one dinosaur that should go extinct. This test may still be required for internationally-trained students. But for domestically-trained law students, the completion of a law degree and a placement should be all that is required.

What was the alternative?

All options should have been on the table. Law school’s third year, as many lawyers know, is often a year full of unnecessary, elective courses. For those already coming in with a master’s degree or a substantive undergraduate degree, it is an unnecessary expense and it adds little value. Maybe the third year should instead be a placement (co-op) or a model like the Law Practice Program.

Another alternative would be to implement a four-plus-one-year law program instead of requiring an undergraduate program. The fundamentals of legal theory and the components of the T-shaped lawyer could be taught during these four years, with a final year of an internships and co-ops to put these skills into practice (no test, no further articling).

The overall investment by the students will be the same, if not less, but their skill-sets and their ability to seamlessly transition to working while realizing a benefit to their investment, would be better supported.

Out of all the disappointment, the sole silver lining was the Ryerson and University of Ottawa Law Practice Program was made a permanent fixture of our legal training program. The program is essentially a mini Ryerson-Law model, taking away the need for students to find a four-month articling placement on their own and implementing an intensive four-month classroom program to teach the practical, critical skills that law students should ideally be learning.

So, apart from continuing with the LPP program, in 2018, we failed to move the profession forward. I hope in 2019 is different.

I hope a new bencher election in Ontario opens the discussion on fundamental changes required to the articling process, flexibility for alternative business structures, enhancing the support toward access to justice and achieving true diversity and inclusiveness within our legal profession.

I also hope to see Ryerson Law rise from the ashes and serve as a model to other law schools across Canada. Then and only then can I look at a high school student, especially those coming from a first generation of post-secondary education or a diverse background, and assure them that investing their time, effort and money into becoming a lawyer is truly worthwhile, rather than having to reply with “it depends.” 

I wish you and yours a happy holiday season and a prosperous and innovative new year!

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