Rationality not romance needed in articling debate

Ian Holloway
Tradition is the foundation on which our professional culture is built. It is the centripetal force that holds us together in the face of centrifugal forces wanting to pull us apart. Things like gowning or bowing to the court, or talking about a place called “Upper Canada,” may seem quaint and old-fashioned, but they give us a sense of rootedness and they guard against the human tendency to the arrogance of the here and now.

A precedent-based system like the common law could not function without an instinctive reverence for the test of time.

But if tradition is a lawyer’s ambrosia, nostalgia is our curse. Nostalgia clouds judgment and subverts rationality. It romanticizes the past and distorts the present. That’s because it is based on memory and sentimentality, not evidence or fact. Nostalgia is an emotion of wistfulness. It is an intoxicating brew of rose-tinted glasses and yearning for a happier time.

Sadly, it is nostalgia rather than tradition that is driving the debate about the future of the articling system in Canada today. The imperative is plain to all of us — it is to train the next generation of lawyers to serve the public interest. That is our professional tradition; it is the sacred duty of the bar, as Lord Brougham described it in his defence of Queen Caroline.

To frame the question this way of course requires that we first ask ourselves what exactly it is that lawyers need to know, and then how best to teach it. It is — or at least should be — an evidence-based enquiry from start to finish. Past practice is the starting point, but there needs to follow an analysis of how well the past is serving the present and how well we think it will serve the future.

Unfortunately, that’s not generally how the discussion goes in Canada. For reasons I’ve never seemed quite to fathom, when it comes to articling our professional commitment to evidence-based decision-making, which one assumes lies at the core of our professional ethos as lawyers, seems to go out the window. Judging by the tone, we would apparently much rather stake out our argumentative turf on the basis of emotion and assertion.

The problems with the articling system in its current form are both many and obvious: for one thing, it is built upon a short-term spot market for legal services without much consideration for the long-term needs of the rule of law.

As I noted in an earlier column, it assumes a “one-size-fits-all” that does not come close to reflecting the realities of modern practice. It is also a woefully inconsistent scheme of training. As for quality control, our law societies simply don’t have the resources properly to police it.

And if we’re concerned about the shortage of young lawyers going to smaller centres, we shouldn’t overlook the impact that articling has on driving students to the bigger cities. Nor can we blind ourselves to the data that suggests that immigrants and visible minorities may be at a systemic disadvantage when it comes to winning positions.

These are all damning enough. But the real problem with the articling system is that we seem incapable of having a rational discussion about it. Articling is to the legal profession as medicare is to the Canadian population generally. Positions — both pro and con — are entrenched in such a way that it seems impossible for the two sides to communicate with one another.

People who favour change are Philistines. People who oppose are Luddites.

To its credit, the Law Society of Upper Canada has recently embarked on two experiments: the Law Practice Program in lieu of articles, and the Lakehead University model that incorporates the equivalent of articling within the JD program.

But no one should be oblivious to the fact it took more than four decades since change was first proposed for the benchers to muster the courage to consider even small-scale experiments. Nor can we overlook that there are a sizeable number of lawyers who hope that the programs — the LPP, especially — will fail.

The truth is that we desperately need to have a conversation in Canada about the future of articling. If we aren’t prepared to take positive — ambitious, even — steps to ensure that the way in which we prepare students for admission to the bar is really doing what we need it to do, isn’t it hollow to say that we are a learned profession that warrants the privilege of self-governance?

Along with alternative business structures, articling is one of the two most important issues facing us as a profession today. But until we substitute rationality for romance in the way in which we think and talk about it, I’m not sure that we’ll make much headway at all.

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