Killing the LPP and resistance to innovation

So the Law Society of Upper Canada has been invited by one of its committees to deep-six the Legal Practice Program. Convocation is set to vote on a proposal by the Professional Development and Competence Committee on Nov. 9. The question now is, “What next?”

The LPP was, along with the establishment of the integrated curriculum at Lakehead University, the most innovative step forward in the scheme for training lawyers in Canada since the 1940s. It was fresh and exciting, and it heralded an openness to innovation that some observers of professional governance doubted existed in our country. It also fit squarely with the zeitgeist of the Canadian Bar Association’s Futures project. But now, its days seem numbered.

To be sure, the whole innovation thing from the beginning had doubters. Indeed, to paraphrase the Duke of Wellington on Waterloo, the adoption of the LPP was the closest-run thing you ever saw. Those of us who follow this stuff watched the process unfold as we might watch a James Bond movie. It was high-drama, edge-of-the-seat stuff. Right up to the final tally — I remember it was a cold evening in Calgary when I received notes from both Lorne Sossin of Osgoode Hall and Adam Dodek of Ottawa telling me the news — we didn’t actually know how it would turn out. But to its credit, the LSUC took the step. And the University of Ottawa and Ryerson were commissioned to develop the French and English versions of the program, respectively.

And develop they did! As the Professional Development and Competence Committee — the group that is now recommending that it be abandoned — noted the LPP “is to all observation of very high quality and may, in fact, excel over articling in a number of areas.”

Even in its short life, the project has grown beyond simply admitting lawyers. The French language program has begun to feed new lawyers to parts of the province where the greying of the bar has become a rule of law problem. And for its part, Ryerson leveraged the LPP project to develop a legal tech incubator called the Legal Innovation Zone. If you’ve never seen the LIZ, you should, for it will show you just how well, if given the right nourishment, law and technological entrepreneurship can go together.

What, then, was the problem? Why the recommendation to can the LPP? If, as the PD & C Committee said, the LPP might actually be a better educational product than articling, then why on earth should we want to get rid of it?

The answer, in a word, is brand. PD & C’s report noted that the majority of LPP
students “appear to consider the LPP alternative as a second choice or, indeed, no choice at all.” And the fact is they were right. It’s true that today’s law students, if given a choice, would article rather than enrol in the LPP. Of course, they would, for that is the system by which almost every lawyer in Canada was trained. So it’s what seems reflexively “normal” to us. Moreover, the legal employment market is, to a significant degree, built on the idea of a year-long job interview.

Given this, how could anyone imagine that a set of professional biases as deeply ingrained as these could be undone in three years? For Heaven’s sake, that is less time than it takes many lawsuits to get to trial!

And how is this situation any different from the benchers of 1949 saying the only way to learn to be a lawyer was to work in a law office for five years, with lectures tacked on to the mornings and evenings. The newfangled vision of legal education being peddled by Caesar Wright and Bora Laskin at the University of Toronto could never be as good as the tried-and-true system administered by the law society, they argued. How antediluvian and flat earth-ish that sounds to us now! But to the men who governed the profession just two generations ago — who were smart and at the top of their professional game — it was a proposition so unarguable as to be axiomatic. So should we really be so confident in our ability to cast judgment on the LPP just because attitudes haven’t fully changed after only two years?

As it turns out, we’ve seen this movie before. I taught in Australia in the 1990s, when what the Australians sometimes call the “college of law” model (but formally known as the Graduate Diploma in Legal Practice) was beginning to take hold. Like the LPP, it first sat alongside articling as a parallel pathway (though different Australian states did it differently). And just like the LPP, those who enrolled were in the early years thought of as the B Team. But now, most Australian lawyers would tell you that the colleges of law produce a systematically better-trained lawyer. It took a while for attitudes to evolve, but the resolve to build a better professional training mousetrap didn’t waver. And the profession is better off for it.

The point is it was just plain wrong to recommend the LPP be abandoned because attitudes hadn’t fully changed in three years. In a conservative profession like ours, that was a grossly unfair burden to discharge. Indeed, if attitudinal evolution in three years is now to be the litmus test, it’s hard to imagine that we’ll ever change anything.

None of this is to say that the LPP is perfect, for it isn’t. It is, as its architects will tell you, an evolutionary work in progress. And the issue of cost is one that would have to be sorted out (though Jordan Furlong debunked much of the alarmism about subsidies for the LPP in his recent column over at Slaw. But whatever flaws there are in the LPP need to be measured against the defects in the articling system (some of which I’ve discussed before).

Yet, for the moment, this is all water under the bridge. PD & C has spoken. The question now is, quid nunc? What’s next? If not the LPP, then what? I only hope that when it meets on the Wednesday before Remembrance Day, the Law Society of Upper Canada remembers to ask this, too.