LSO to mandate pay for articling students

“We think it is important that those who want to serve the public as lawyers get a very solid, high-quality grounding in the skills they are going to need from people who have demonstrated excellence in those skills. We also think it is important for the new lawyers to be successful, that they get a solid grounding in experiential training, because law school does not prepare them to practise,” says Bentley.

The proposals were presented to LSO benchers at a special Dec. 10 Convocation meeting in a report called “Options for Lawyer Licensing” by the LSO’s Professional Development and Competence Committee. The changes are designed to “address flaws in the current system, so that all candidates have a more uniform, valuable experience,” said Professional Development and Competence Committee Chair Peter Wardle in a press release.

The package of changes to the lawyer training process approved on Dec. 10 was one of two options presented to Convocation by Wardle’s committee.

The first option, which was successful, was dubbed “current mode with enhancements.” The successful proposal offered to keep the LPP, mandate pay for articling and LPP work placement students with “limited exceptions,” monitor articling and LPP work placements, and require mandatory education and training for students’ supervisors.

The other option, which did not move forward, was an exam-based model, where students would be licensed upon passing the barrister and solicitor exams, while “transitional training” would move to the first year of practice if the licensee moved on to practise law. Under this option, licensees who opted to practise as a sole practitioner or in a small firm would have been required to take a new “practice essentials course” and would be audited in the first year of practice.

Although the exam-based proposal was unsuccessful at the Dec. 10 Convocation, a press release from the law society said the Professional Development and Competence Committee will continue to consider “some form of skills testing in the licensing process.”

Convocation’s approval “follows a comprehensive review of the licensing process, which looked at the realities, challenges and opportunities of lawyer licensing in the province and included extensive consultation with the profession and others," Law Society Treasurer Malcolm Mercer said in the press release.

The Dec. 10 changes to the process for lawyer licensing have been under consideration by the Professional Development and Competence Committee since November 2016, said the committee’s December 2018 report.

Over the past two years, the law society has identified several issues with the articling process, a 10-month supervised work placement for law graduates vying to be called to the bar.

Between 4,000 and 5,000 people take part in the lawyer licensing process each year, the law society’s “Dialogue on Licensing” report says, but only 10 per cent of Ontario law firms offer articling positions, according to a separate May 2018 LSO Consultation paper on licensure. About 64 per cent of articling positions are in the Toronto area, the report said.

Ten per cent of articling students were paid less than $20,000 during their term while 30 per cent of LPP students had unpaid work placements, the consultation paper said, even though $2,800 of candidates’ $4,700 licensing fee goes toward funding experiential training. About 21 per cent of lawyers surveyed told the law society that, during their articling, they faced unwelcome comments on their age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex and/or sexual orientation. Fourteen per cent said that less than half of the work they did during articling helped them develop legal skills.

The challenges facing law graduates come amid increasing competition for entry-level jobs: By 2025, there are expected to be 29,500 law school graduates but only 11,000 positions for new practising lawyers, according to The Higher Education Quality Council of Ontario, which studied the issue in 2016.

After these issues came to light, the committee presented four options to the public for a call for comment: the two options that were voted on Dec. 10, as well as an option that proposed no changes to the existing model, and an option that expanded the LPP program for all candidates. However, the choices were whittled down, because making no changes to licensing would “not respond to various challenges currently facing the lawyer licensing system,” while expanding the LPP program would cost more than $15,000 per candidate, the committee’s December report said.

The law society’s call for comment received 86 responses from lawyers, licensing candidates and other members of the public, and 34 letters from legal organizations, the report said. Most respondents to the call for comment preferred making no changes or preserving the existing model with “enhancements,” the option that was ultimately adopted by Convocation. But, the report said, “there was no overwhelming support for any of the options,” and “some respondents, including legal organizations, thought that none of the options were responsive to the challenges of the lawyer licensing process.”

While considering the changes, the law society also partnered with a third party to host 12 focus groups in Ontario cities of Toronto, Hamilton, London, Windsor, Sudbury, Ottawa and Thunder Bay, focusing on students, licensing candidates and early- and mid-career lawyers, the Professional Development and Competence Committee’s report said.

Heather Donkers, chairwoman of the Ontario Bar Association’s Students Section and president of the Law Students' Society of Ontario, says the law society’s effort was not enough.

“As students, we have to trust that Convocation took account of the LSSO’s extensive submissions in arriving at the decision,” said Donkers in an email. “But it’s not enough. Holding a Special Convocation in the middle of the exam period meant that students could not participate in the dialogue as fulsomely as they should be entitled to. Going forward, I expect that students will be involved at every stage of consultation processes, which involve decisions that will directly affect them.”

Ryan Handlarski, who practises at RH Criminal Defence in Toronto, says that greater oversight of the articling process may discourage those who wish to abuse the process but that the LSO’s decision to require pay for articling students could be controversial, given that some students may prefer an unpaid articling role to other alternatives. Handlarski says that is unlikely to change one of the core issues affecting law students — the competitive nature of the field, something he still grapples with after a decade in the profession.

“It’s very clear that the law society is going to license anybody who meets the requirements of getting a law degree, passing the tests and meeting the good character test. So, given that system, I don’t see that the regulatory body can do much to avoid competition and to guarantee salaries. These are problems left to the individual lawyers. The problem is going to occur after you graduate and article. You have to solve those problems by being prepared to compete with other lawyers and knowing what that entails,” Handlarski says.

Former law society treasurer Vern Krishna, counsel at TaxChambers LLP and law professor at the University of Ottawa, says he is concerned that Convocation’s decision to keep the LPP in place may have the unintended effect of exacerbating discrimination issues in the profession. Instead, he says, he favoured the defeated proposal to base licensure on examinations, and provide different routes to train licensees based on what type of career they pursue.

The LPP, offered in English at Ryerson University and French at the University of Ottawa, includes a 17-week course and a four-month work placement and is used by about 10 per cent of licensing applicants, according to one of the law society’s “Dialogue on Licensing” reports. Almost all LPP participants surveyed during the law society’s focus groups said articling was their first choice.

LPP participants are more likely to be immigrants, foreign-educated or racialized.

About 83 per cent of Ontario law school graduates articled in the 2015 to 2016 school year, while nearly 70 per cent of graduates from other Canadian law schools articled and about 48 per cent of licensing applicants from other countries articled. Other students were either exempted, participants in the LPP or took no experiential training, the “Dialogue on Licensing” report said. About 36 per cent of LPP candidates are racialized while only 22 per cent of articling candidates identify as racialized, the law society’s report says.

“Law has always been a more exclusive profession,” says Krishna, citing issues faced by religious minorities and women in the past. “Sending the students that are the most disadvantaged — visible minorities — sending them off into a special program I think prejudices them even further. It tarnishes them as second-class lawyers or would-be lawyers, which is the worst thing they could have done. They already have a handicap and we are throwing them down the gutter.”

But Bentley says that, with 90 per cent of LPP candidates working in law or law-related fields within one year, the LPP is “the most successful diversity program the law society has.”

“The end of the day, what we as Canadians expect our institutions will do is provide those who have the ability, the energy, the drive and determination with a chance to succeed and put their skills to work, and that’s what the LPP does,” Bentley says.