Thursday, November 15, 2012

The "Articling Crisis" - Or is It?

On November 22, 2012, the Benchers of the Law Society of Upper Canada shall once again convene to address the province's so called "articling crisis."

I am not convinced there is any crisis at all. And I'm certainly not convinced that either of the solutions on the table is any solution at all.

The bottom line for me is simple - the Law Society should reject both proposals that have been advanced and opt instead to direct its unfettered energies and resources in the direction of strengthening, standardizing and expanding the current articling system.

We don't need radical changes or quixotic parallel programmes.

Rather, let's leverage this closely-watched debate into a golden opportunity to get serious about updating and modernizing our existing articling system.

To paraphrase Eisenhower (and my friend Irv Handler), the search for a scapegoat will generally be a successful enterprise. And as Ontario's Law Society and the profession have tackled this highly-charged "articling crisis," the search for scapegoats has indeed been predictably fruitful.

Who to blame?

Shall we blame the lawyers? The law schools?  The Law Society?  The Federal government? The Province?   The marketplace? The students themselves?  All of the above?

I suppose it should not come as a surprise that a significant contingent of those studying this so-called "articling crisis" have opted for none of the above. They have decided, instead, that it is articling itself that is the problem.

Off with its head!

So say the dissenters.

In their heroic quest to solve the "articling problem," they call for an end to this time-tested process of practical, on the job learning in favour of a yet-to-be defined, practical legal education programme - after law school - that will cost each license applicant thousands of dollars. As if their student loan burdens aren't already breaking them.

The majority's "parallel systems" proposal isn't much better. Do new lawyers or the public really stand to benefit from an ill-defined two-tiered system that bypasses necessary on-the-job training for the unlucky some, while costing the profession millions of dollars over a ten-year period?

Background - The Articling Task Force

The essential background reading is here:
The Great Canadian Articling Debate

Now I confess to being somewhat late to this discussion.  Yes, it is true that amidst all the digital noise to which my email and RSS feeds are regularly subjected by LSUC, the CBA, the OBA and their ilk, I was vaguely aware at some point last year that the Law Society was studying the difficulties some articling candidates were having finding jobs, with a view to making recommendations to address this concern.

However, never in my wildest dreams did I expect our governors to actually try to do something about it.  They so rarely have.

But in this case,  they have dug in, indeed. And now verge on getting it all wrong.

In my mind, it is plainly obvious that the solutions to the articling jobs problem simply involve mobilizing the lawyers, the law schools, the Law Society, the Federal government, the Province, the marketplace and the students themselves to create and fund the 200 or 300 new articling jobs we need  - and perhaps in the process, address the access to justice issue we never tire of discussing and collectively avoiding.

At the risk of plagiarizing my own Twitter comments, let me reiterate:
Ontario: 35,000 lawyers,63 legal aid clinics, 172 Courthouses. #LSUC: Do we really believe we can't create another 300 #articling jobs? Shame.
Surely, we can find a way to place these not-yet employed articling students in a dynamic programme that rotates them between community legal aid clinics, courthouses, public advocacy organizations and government agencies.

If wholly funded by the profession (and it should not be), 300 positions paying a modest stipend of $25,000 for ten months of articling would cost each of  the Law Society's 35,000 members the staggering sum of $214.28 annually  At $30,000, the cost per lawyer would be $257.14.

(And yes, prospective students who can't find articling jobs, I understand that's not what Bay Street pays. Deal with it.)

University of Ottawa Law Professor Adam Dodek has set out an inspired proposal along these lines in his recent Slaw article, Articling and Access to Justice: An Ontario Legal Corps – Why Not?  I urge readers to give it a look.

Now I don't suggest a Legal Corps is the only solution, but do I think it is a good, progressive initiative that would reflect the best traditions of our profession.  It should be implemented.

My sense is that there is widespread consensus among Ontario lawyers that articling is an important, perhaps crucial component in the making of a competent lawyer. There is good reason the "articling debate" is so emotional.

I'm not sure I agree entirely with this comment on a March 2012 Canadian Lawyer article on the articling crisis, but there is enough truth in it that I believe it bears repeating:
The majority of law school graduates who cannot find articling positions are students who couldn't get into a single Canadian law school and had to go abroad. There has simply been an increase in these types of back-door students, and this is causing the articling shortage (in addition to the U of O's recent money-grabbing exploit). I wouldn't call it a crisis.
I hope that the LSUC does not take an "everyone deserves to be a lawyer" approach. If they eliminate articling, it'll just open up the flood gates and send us down the path of the U.S. legal profession, where anyone with money to pay tuition can join the profession. I wouldn't be surprised if English and Australian schools opened up private campuses in Ontario.
The LSUC needs to find a way to allow only the best and brightest to become lawyers. The elimination of a practical articling experience will not serve the public interest; it'll just allow for the existence of more members to pay dues.
And while the law schools - in Canada and Australia (Australia?) - plainly must shoulder a good deal of the blame for relentllessly flooding the marketplace with ever-increasing numbers of  J.D. graduates that the profession has inadequate capacity to absorb in articling positions, at the end of the day, it is we lawyers who will have to solve the problem.

The Law Society, quite understandably, is in a regulatory pickle over the articling shortage.  A fair licensing process cannot place candidates in a catch-22 that requires completion of articles when there are no articling positions to be found. The imposition of hurdles that cannot be jumped in the licensing process is ultimately arbitrary and unconscionable.  The fact that racial minorities are so dramatically overrepresented among those who do not find positions discloses a discriminatory component in this issue that simply cannot be tolerated.

The Law Society must therefore take a leading role in creating these needed positions. That they have tried and failed so far is rather unfortunate.  They - and we - must try harder.

My understanding is that approximately 300 new articling jobs must be created and the numbers problem will be solved.  (Perhaps it is only 200 or 250, depending on who you are talking to, but let us safely assume the additional requirement is somewhere in that range).

There are 35,000 lawyers in the Province.  If only one out of every 100 lawyers in Ontario became an new articling principal, once again, the numbers problem will be solved.

What do we know about firms that do not take on students? What are their issues? Money and cash flow concerns?  Shortage of work? Discomfort with the added responsibility? Desire to avoid dealing with the Law Society? Fear of change?  Lack of confidence?  Lack of interest? Nobody ever asked?

I'm not sure we know the answers to these questions.  That is unfortunate, but not fatal to action.

I suppose our firm, Wise Law Office, is a relative rarity in the profession in that we are a small firm that has hired articling students most years over the last many years. Our students have been a great bunch, and most were able to carve out a valuable role in direct advocacy work on behalf of our clients and as respected members of our team.  It is simply a pleasure to see students emerge over the short articling period as trustworthy, ethical and capable professionals. I genuinely take pride in our students' successes, during and after articling.  That really is a reward.

By way of example, just recently, I received a complex pleading that had been drafted by one of our former students.  On reading it, I couldn't help but note how incredibly well-conceived and meticulously drafted this lengthy document was.

As I told him, I wouldn't have changed a word.

"I had a good teacher," he responded.

I urge my colleagues in small law practices to consider creating an opportunity for a student.  I suspect you will be glad you did.  You may even decide you can't live without articling students on staff in the future, as I did.

The Law Schools

The law schools have a role to play in creating new positions.  Aside from funding placements in their own legal aid clinics, I would urge Ontario's law schools to reach out to smaller law firms about articling opportunities.  If you are selling your students on a Seven Sisters or bust mentality about articling, you are doing them - and the profession - a great disservice.

The law schools need to make a concerted effort to include small law firms in their career fairs - and they need to wholly subsidize any costs associated with small firm participation in these events.  They do neither.

The annual Summer and Articling Career Fairs, jointly run by the University of Toronto and Osgoode Hall Law Schools at  the Metro Toronto Convention Centre,  features an appallingly small group of employers - in 2009, only 58 employers participated.  The 2012 Fair boasted an increase to "over 70" employers in attendance at the 2011 event.

That is a very small - and certainly not representative - slice of the profession being featured.

The law schools need to stop selling students on the fantasy of the "big firm" payoffs.  They must take real responsibility for matching students with firms by including smaller firms in the menu of career options they place before their students.

Many, if not most, licensees will ultimately find themselves practicing in smaller firm environments. The value of preparing for that career destination with the kind of hands-on practical experience gained while articling with a smaller firm is so rarely considered, let alone advocated by our regulators.

It's high time to end all that.

Articling with a smaller firm need not be seen a consolation prize for those that biglaw passes by - for many aspiring lawyers, such articles may well be the best preparation there is.

Regulatory Solutions

Not so long ago - in 2011, to be exact, the Law Society of Upper Canada inaugurated a formal requirement that licensees participate in a specified number of Continuing Professional Development hours annually.

In other words, the Law Society requires us to learn.

If the Law Society is prepared to require lawyers to learn, I see no reason in principle that the Law Society should not also require licensees to teach.

If voluntary participation by lawyers in the articling programme cannot be increased, I propose a requirement that each licensee with ten or more years of practice experience be required to serve as an articling principal at least once every five years for at least one-half of a ten-month articling rotation.

Problem solved.

Of course, then lawyers would be scrambling to find students.  And we'd have another crisis.... and another task force...

And I'd have to write another one of these long blogs.
- Garry J. Wise, Toronto
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