This was never going to be easy.
One year ago, the Law Society of Ontario embarked on a comprehensive review of its lawyer-licensing system. Nothing was safe from scrutiny. Not articling. Not the bar exam. And not the Law Practice Program, the alternative path to licensing offered in English at Ryerson University and in French at the University of Ottawa.
To kick off its investigation, the Law Society hosted a series of town-hall-style events across the province to solicit advice from the profession. These events sometimes got fiery. At the Toronto town hall, articling came under attack as a system infected with racism. “As a brown female, I’ve been asked stupendously offensive questions at various interviews,” said one recent call. “I think that’s the experience of a lot of racialized students who tried to find articling jobs.”
Once these events wrapped up, in June 2017, the Law Society went quiet. That is, until now: this week, the professional development and competence committee published a 38-page report that proposes four possible reforms to the licensing system.
Within the first few pages of the report, it becomes abundantly clear why we have to debate — yet again — the future of legal training: the province still has an articling crisis. It’s no secret that, in recent years, the number of law-school graduates seeking an articling position has soared. Over the past decade, first-year enrollment at Ontario law schools has risen from 1,234 to 1,549. During that same period, the number of international students who’ve had their law degrees accredited in Canada has skyrocketed from 200 to 900. The job market has not kept up with this demand. “There continue to be between 200-300 candidates who have not been successful in their search for an articling position by August or September each year,” the report concludes. “A permanent shortage of articling positions now exists.”
Hold on a minute. Didn’t the Law Society create the Law Practice Program to solve this exact problem? Indeed it did. So if a candidate strikes out in the articling job market, can’t she simply head off to Ryerson? Absolutely.
The problem is, as the report points out, “enrollment in the program has been more modest than was anticipated.” When the Law Society launched the LPP, it expected about 400 candidates to sign up each year. But enrollment, over the past four years, has hovered around 235.
The bottom line: the current licensing system is still not working. And so, it’s no surprise that the Law Society is considering more reform. Below, we break down the four options up for discussion.
Tweak the current system
As it stands now, the path to licensing has two parts. First, candidates have to article for 10 months or complete the Law Practice Program, which consists of four months of online coursework and a four-month work placement. (At Lakehead University, law students complete a work placement in third year, so they’re exempt from this requirement.) And second, they have to pass the bar exam. Done.
This option would refine that regime. To start, unpaid articling positions and work placements would be banned. Employers would have to pay minimum wage. This seems like an unalloyed good. Three percent of articling students currently work for free, while 10 percent earn less than $20,000. And close to 20 percent of LPP work placements are unpaid.
To make sure “all placements meet the basic goals and objectives of transitional training,” this option would also subject employers to increased monitoring and random audits of their training programs.
One more thing: after articling or completing their work placement, candidates would have to pass — in addition to the bar — a new practical-skills exam. This would test the ability of candidates to draft basic legal documents, such as opinion letters, affidavits or short pleadings.
Kill articling and the Law Practice Program
In this option, both articling and the Law Practice Program would end. But after law school, candidates would still have to pass both the bar and the new practical-skills exam outlined above. (By the way, this looks a lot like the system in New York.)
This poses one clear problem. If both articling and the Law Practice Program no longer exist, then how will candidates acquire the practical legal skills they need to, you know, pass a practical-skills test? The report speculates that, if implemented, this option may “pressure law schools to provide more experiential training opportunities.” But it’s hardly optimistic on this point: “Depending on the nature of a candidate’s law school exposure to experiential training, it may be challenging for some candidates to be successful in the skills examination.”
This option has one more component. If you want to launch your career as a sole practitioner or at a firm with fewer than six lawyers, you’ll also have to complete a “practice essentials course.” But why single out this group of lawyers for extra training? The report provides the following answer: though sole practitioners make up 35 percent of lawyers in private practice, they receive 51 percent of all complaints.
This new course would “include 30 hours of online e-course content and five in-person days.” And it would cover a range of subjects, from how to communicate with clients to the basics of practice management.
Abolish articling, but make the Law Practice Program mandatory
At the end of law school, everyone would complete the Law Practice Program. But it would no longer include a work placement. The program would consist entirely of four months of online practical training. This coursework would look the same as it does today: candidates would form virtual law firms and, under the guidance of a mentor, work through mock files in seven practice areas, from real estate to family.
This option would solve a lot of problems. Every candidate would receive the same practical-skills training. No one would be at the mercy of the job market. And there would no longer be any unpaid articling jobs or work placements — they wouldn’t exist. The report also cites the fact that, after completing the LPP, “candidates are generally very satisfied with the training.”
There is one big downside: this option ain’t cheap. At the moment, it costs $4,710 to go through the licensing process. “To support a mandatory course for over 2,000 candidates annually could result in a total licensing fee of $13,500 to $15,500,” the report explains. With third-year law students across Canada carrying, on average, $71,444 of debt, this would be an enormous burden.
If selected, this option would maintain the status quo: both articling and the LPP would live on in their present form. The report presents this as a realistic choice. Sure, it wouldn’t solve the “permanent shortage of articling positions.” Nor would candidates magically receive consistent practical-skills training. But if, in the end, the profession can’t agree on a path toward reform, this is the fall-back plan. The profession can stick with the devil it knows.
So what happens now?
Over the next five months, the Law Society will be collecting feedback on its report. You can submit comments online until October 26. Drawing on those responses, the professional development and competence committee will then present final recommendations in the New Year. Let the debating begin.