Thursday, May 26, 2011

Articling, Access to Justice, And Lakehead University's New Law School

Two recent related news items - the Law Society of Upper Canada's approval of a potential new law school at Lakehead University and Michael Johnston's remarks upon becoming chairman of the Ontario County and District Law Presidents' Association - made me think about the larger articling process, especially given Mr. Johnston's comments on the matter:
There is a "glut" of students graduating from law schools in Ontario and elsewhere looking for places to article in Ontario, but there are not enough spaces, he noted.

Another critical issue is what Johnston calls the "greying of the bar," the aging of the legal profession's membership, causing concerns over succession.

That's a particular problem in smaller communities, which could soon face a lawyer shortage much as they are now facing doctor shortages.
So what we seem to have here is the legal community recognizing the abundance of graduating law students who cannot find articles, and rushing to create more graduating law students to exacerbate the problem.

Of course, that's a glib summary, but the articling shortfall is very real and getting steadily worse - and it is directly related to Mr. Johnston's other concern. Simply put, articling positions in smaller communities are a relatively scarce resource. For the articling job seeker, this is admittedly partly a case of confirmation bias: articling opportunities in smaller communities are scarce because lawyers operating in those communities don't advertise their articling opportunities widely (if at all).

If you want to put on an economists' hat, this makes sense. There are less opportunities for lawyers in smaller communities by simple virtue of numbers, and articling students are more likely to initially practice in areas where they have articled than otherwise: small-town lawyers are, on some level, thus theoretically disincentivized to hire articling students because of their potential to become competition.

One can argue instead that the problem exists because students are less interested in articling opportunities outside of large cities, and this probably has some merit to it as well - articling jobs in Toronto and Montreal typically pay much better than articling jobs in Medicine Hat or Saint John - but if jobs in smaller communities are advertised, then they will get applicants.

Speaking from personal anecdote alone, one hotly discussed position among third-year students, when I was in school and looking for articling jobs, was a reasonably well-compensated position with a sole practitioner in Kenora who was looking for an articling student to transition into an eventual junior lawyer position. (Given that the advertisement was taken down after a month, I assume he found his candidate.) Given the necessity of articling to join the bar, students will eventually accept any articling position they can realistically afford, or see their upwards-of-$40,000 investment in law school (and usually much more than that) go to waste.

If the articling process is going to remain a valuable part of legal education - rather than be tossed aside as it has been in practically every other jurisdiction in the world - then it has to be readily available to law school graduates. In his comments, Mr. Johnston addresses two major problems facing the legal community: lack of access to legal service by the general public and a shortage of lawyers in smaller communities.

Both of these are issues easily solved in one sentence: increase the supply of lawyers. However, if the articling process is hindering that goal - which increasingly appears to be the case - then it must either be fixed (perhaps by making articling commitments less optional for practicing lawyers than they currently are) or done away with so that some other form of practical legal education for new lawyers can be instituted. Otherwise, the ongoing legal access crisis in Ontario will only grow worse.

(And an aside: the term of chairman of the Association lasts only eighteen months? Does that seem particularly short to anyone else? Crafting policy changes is a task usually costed in years, not months...)

- Christopher Bird, Toronto
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