The Law Society of Upper Canada’s articling task force has released its highly anticipated final report, but with dissenting views.
The report,
“Pathways to the profession: A roadmap for the reform of lawyer licensing in Ontario,” has various solutions for the current articling crisis in the province. One thing the entire 13-bencher task force did agree on is the status quo can’t continue.
The majority’s main recommendation is for a five-year pilot project, to begin in 2014, of a law practice program as an alternative option to the current articling system. This option was strongly opposed by the task force’s four-person minority.
The LPP, to be delivered by one or more third-party providers, would combine a skills-training component and a co-op work placement for a total of eight months.
In its view, “it is difficult to justify [the majority’s] proposal to have not one, but two, lengthy transitional programs, the first of which (articling) cannot be validated, and the second of which (the LPP) creates a new, unfair and similarly flawed approach,” wrote the task force minority.
Instead, it recommends a two- to three-month comprehensive transitional pre-licensing program that would consist of online learning and exams to assess the core competencies that lawyers need to have, and get rid of articling altogether.
The minority also calls for additional experiential education programs at the law schools in order for students to gain the practical skills they need to enter the workforce.
The law society “should be putting some pressure on the law schools to do more in the third year of law school,” says Bencher Peter Wardle, a member of the task force’s minority.
Osgoode Hall Law School dean Lorne Sossin warns against law schools taking on the regulatory role of the law society.
“I’m very a enthusiastic supporter of experiential education, but I am that because I think it’s the best model of legal education out there, not because I think it’s a good model of delegated regulation for the law society,” he says.
“I worry about a process that’s going to end up with more law society regulation of law schools,” he adds.
Cameron Bryant, a third-year law student at Osgoode Hall Law School, says there are many benefits to clinical programs, but there are also limitations.
“Articling gives you something more. What it gives you is the opportunity to work in an office environment, which many people have not done before,” he says.
The report’s main recommendation would create a two-tier system of those who articled and those who completed the LPP and Wardle says those who go through the LPP could be stigmatized.
“In our view it is inevitable that the LPP graduates will be stigmatized by the profession, on the basis that these are the candidates who couldn’t find articles and therefore are somehow less qualified,” the minority stated in the report.
Bryant also foresees the profession discriminating against LPP students.
“I do think there would be a sense in people’s minds that someone who is in an LPP course in a co-op placement is somehow less than someone who is going to a Bay Street firm, and I think that’s unfair to those students,” he says.
Tom Conway, task force chairman and LSUC treasurer, dismisses this perception.
“Those people who say that [LPP] individuals will be second-class citizens I think have not really considered the issues fairly, and have come to the debate with prejudices and assumptions that are highly questionable,” he says.
Along with the concern for stigmatization is the issue of cost. The majority recommended equalizing the costs of the LPP to all licensing candidates.
“We had to consider that [LPP] candidates would be paying for the course instead of being paid by an articling principal, and that their co-op placement could very well be unpaid as well,” says Conway. “So from a fairness perspective, the majority came to the conclusion that that cost should be borne by all licensing candidates across the board.”
The report estimates that would increase the current licensing fee to approximately $5,670 from $2,950 per candidate, once a final assessment is factored in.
Conway says after considering input from the profession, the majority decided to keep the articling program because it “put more value on the generations of lawyers in practice who have said that the experience of articling and the experience of being a principal to an articling student is very valuable for the training of a lawyer for practice.”
However, Wardle says, “Articling has really outlived its usefulness and it’s time to move on with a different process.”
Bryant places some blame on the law schools for the lack of articling positions.
“One of the biggest problems is that the law schools continue to admit more and more students,” he says. “I think that if that were to be scaled back, there would be more articling positions for more students.”
Sossin begs to differ. “We get 11 or 12 people vying for every spot at Osgoode,” he says. “Canada doubled its population over a 30-year period if you go back, and virtually that was the last new law school, so arguably there’s a pent-up demand issue.”
But Bryant argues law students enter law school with the expectation that they will either end up practising law or be able to get a job with their law degree.
“When a law school simply lets in more students than there are jobs, it fools us into thinking that we’ll all be able to have articling positions,” he says.
Under the proposed LPP, students would still have the option to article, but additional measures would be enforced. The majority also calls for a final assessment for all candidates, regardless of the option they choose, to test their practical skills before receiving their licences.
The task force will present a motion to Convocation this week, asking it to adopt the majority’s recommendations.
The law society will broadcast a public webcast of the debate at Convocation on the articling task force report on Oct. 25 at 9:30 a.m.
