How a pandemic has made the precarity of Ontario’s lawyer-licensing candidates hyper-visible
For weeks, Ontario’s legal landscape has been shifting in response to the COVID-19 pandemic. Numerous law firms, including my own, adopted protocols early on to ensure the physical, mental, and financial well-being of all their employees. Others, however, did not heed the advice of public health authorities and continue to invoke COVID-19 as an excuse to take advantage of their articling students.
The questionable decisions of these law firms have not only exposed the precarity and powerlessness of articling students, but also raised concerns about how we, as a legal profession, should protect our vulnerable workers in a time of crisis.
Ontario’s legal profession has reacted to the outbreak of COVID-19 in various ways. There are the law firms that have admirably kept pace with COVID-19’s evolving state by first implementing health and wellness policies in the office, and subsequently transitioning to “work from home” directives for their lawyers, students and staff alike. There are the law firms that have tried their best to accommodate their employees, but the demands on their capacity exceed their means, forcing them to consider layoffs, reduced pay and abridgment requests for their articling students. Finally, there are the law firms that have entirely ignored the realities of COVID-19, or assigned its dangers to be disproportionately borne by their articling students.
Articling students fall on the lowest rung of a law firm’s legal structure, below the partners and the associates, all of whom have permanent employment status. In addition, articling students rely on their placements to build their reputations, land a job and get their license. This precarity in the position of articling students, and the power imbalances at play, make them prone to mistreatment. Throw in COVID-19, and articling students are increasingly vulnerable to the whims of their law firms, with some already experiencing the exploitation firsthand.
Paula’s* law firm, for instance, operated “business as normal” until Friday, March 20, when the partnership gave the lawyers an option to work from home, but required Paula and her fellow articling students to work from the office indefinitely. Prior to that the firm had not followed officials’ recommended steps to guard against the spread of COVID-19, simply telling Paula that “the virus isn’t going to kill us,” and that she should be worried about “its impact on the economy.”
Meanwhile, Andrea’s law firm docked hundreds of dollars from her paycheque because she chose to work from home. Andrea had obtained the permission of a partner to do so, but she had asked after another, more influential partner instructed her to act like “a professional” and come into the office. Andrea wanted to work from home out of concern for the immunocompromised family members in her life. As a result of these incidents, Andrea returned to the office, hoping to appease her employer and continue to earn her regular salary.
Both Paula’s and Andrea’s stories exemplify the difficult and often unfair circumstances that articling students face in light of the COVID-19 pandemic. Across the province, law firms are requiring their students to work at the office, meet with clients, attend court and visit prisons, despite government and public health officials’ pleas for social distancing. Some of these students perform their duties as they did before COVID-19 because their law firms downplay the dangers of the virus and insist upon a “business as normal” attitude. Others staff the office alone, because their law firms understand the risks of COVID-19 and have determined that everyone, except the students, deserve to work from home.
Articling students who have contested their firms’ problematic approaches to COVID-19 have reported being met with apathy, ridicule and/or disdain. Siobhan’s articling principal, for example, told her she could “run or ride a bike” to the office if she was nervous about commuting on Toronto’s public transit. The articling principal saw no reason for her to work from home since the office was relatively empty, and thus “a perfect place to practise social distancing.” Siobhan never ended up making a request to work from home, though peers who did typically encountered an ultimatum: either sacrifice the ten personal leave days granted to them by the Law Society of Ontario, or take unpaid sick leave. In extreme cases, articling students have been threatened with not having their requisite LSO hours approved or having their placements cut short.
The situation is undoubtedly alarming. Law firms are employers that have a duty to ensure the health and safety of all their employees. Yet, there are certain law firms in the province that use the unprecedented nature of COVID-19 — and Ontario’s recent designation of legal services as “essential” — to disguise abuses of power against their articling students for the sake of profit. Even if our law firms enacted appropriate measures to deal with COVID-19, we as a legal profession, dedicated to the public interest, should be worried by how our vulnerable workers are being made to feel disrespected, devalued and dispensable in a time of crisis.
The legal profession should see this pandemic as an opportunity to mobilize. We need to advocate for a culture of health and wellness in our law firms and in the legal community. We need to explore the possibility of increasing the number of personal leave days and mandating standardized benefits for our articling students. We need to establish an LSO relief fund so that small law firms and solo practitioners can apply for financial assistance in cases of emergency. We need to move our legal practices (and courts) into the 21st century by investing in infrastructure that allows, and encourages, as many as possible to work remotely.
Crises will happen, and the legal profession has a collective responsibility to be better prepared. Just one articling student slipping through the cracks and being left behind, scared for their physical, mental, or financial well-being, is one too many.
* Names have been changed to protect individuals’ privacy.