It’s time to scrap articling
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As the law school year winds down across the country, Canada’s medium and large law firms begin preparations for the annual legal rite of passage — articling. That’s when hordes of lawyer wannabes, fresh out of torts and civil procedure, disperse across law firms, and anxiously seek to dip their toes in the legal waters.
It’s also a time when masters in Ontario, small claims courts judges across the country, and articling principals — those who must contend with the student hordes — want to scream obscenities, and pull their hair out, assuming they have any hair left at this stage in their career.
I have a better idea. Why not scrap articling, or at least radically overhaul it? The thought is not novel, but could be timely, given the economic climate.
More than 40 years ago, Ontario lawyer Bert MacKinnon, later associate chief justice of Ontario, suggested articling be abolished in a report to the Law Society of Upper Canada. In 2012, a dissenting group of four benchers on the LSUC articling task force proposed the same thing.
Articling and the way the profession trains young lawyers is archaic and a throwback to ancient common law principles, such as primogeniture, where the first-born male inherits everything.
The legal profession has been training lawyers pretty much the same way for more than a century — almost a form of indentured servitude. A law grad finds a firm that agrees to provide tutelage in the hopes of one-day becoming part of the profession. If they hit the lottery they are in. If they don’t, it’s been nice knowing you. Sadly, it’s often minorities and foreign-trained lawyers left in the cold. Even the world’s oldest profession, prostitution, has evolved over the past century. But the process for training lawyers remains largely the same as it did at the time of Confederation.
The problem with articling today is the role of training new recruits falls mostly on the shoulders of larger law firms, which have the resources and bureaucracy to manage the program. However, there is little empirical evidence to suggest articling students are well trained and that articles meet the objectives of the legal regulators. Many students do not receive constructive training and there are few mechanisms or controls in place to ensure the training students receive is up to par. In fact, the 2012 LSUC minority report bluntly states, “articling as it exists today is virtually indefensible from a regulatory standpoint.”
Yet, the sacred cow continues, largely with the result that we push lawyers to Bay Street and not main street, where they are equally needed.
Ontario has grappled with articling for years. The problem is that Ontario is rich with law students, which works well when the economy is humming, but not so much when it’s in the doldrums, which it has been the past few years. Recently, as many as 15 per cent of grads were unable to find that elusive articling job to push them over the goal-line into the legal end zone. It wasn’t right.
While concerns about articling have largely been confined to Ontario, that could change. At the time of writing this column, Target, Sony, and Mexx were fleeing the country, oil prices were crashing, prompting energy firms to slash budgets, and commodity prices were plummeting. The economic gloom is spreading to resource-rich provinces and their legal regulators could soon find themselves with a glut of law students and no places to put them, the same quandary as Ontario.
Ontario has developed a partial solution with its Law Practice Program, where students take an alternative route to articling by taking a practical skills program with a co-op placement. It’s a three-year pilot project started in 2014, which could be extended until 2019. But all the bi-furcated system has really done is created two classes of legal professional citizens — those who were chosen for articles and those who were perceived by law firms as not good enough for articles, so they opted for the LPP. It’s an erroneous assumption, of course, but perception is reality.
The LSUC minority report suggested enhanced online learning modules prior to the entrance exams, followed by post-licensing mentorship, including the filing of a practice plan for those going solo. It’s a much cleaner, fairer, and affordable solution than the one including the LPP that was adopted.
It’s time for law societies around the country to take a hard look at the training processes for bringing new recruits into the legal fold. Yes, articling has been in place for more than a century and has produced Canada’s top lawyers, but that doesn’t mean it’s the best system. Just finding a principal to do research for and carrying that person’s bags isn’t the best way to train new recruits.
Jim Middlemiss blogs about the legal profession at WebNewsManagement.com.
Published in Commentary