LSUC Publishes Articling Task Force Report

By: Ivan Merrow · October 16, 2012 · Filed Under Law Career, Law School, Legal Reform, Uncategorized · 4 Comments 

This article was originally published on www.LFTI.ca

The Law Society of Upper Canada (LSUC)’s articling task force has released its final report on its proposed solution for what has been dubbed the “Articling Crisis” facing recent law grads in Ontario.  The report directly concerns current law students, new graduates of law programs, law firms, and those considering entering the legal profession.  Its main recommendation is the creation of a new Law Practice Program (LPP) — a blend of coursework and co-operative work placement — to co-exist with the current 10-month articling requirement.  If approved, the program would start in the 2014-2015 licensing year, and run for five years.  The full report is accessible here, titled Pathways to the Profession: a Roadmap for the Reform of Lawyer Licensing in Ontario.

In addition to writing the bar exam, law students in Ontario must currently complete a 10-month position as an “articling student” with a practitioner certified by the LSUC within three years of graduation to become a licensed lawyer.  Slow growth in articling positions has failed to keep up with the swelling number of graduates from law programs in Canada, and has left as many as 15% of law grads without an articling position.

A minority of the LSUC’s task force recommended abolishing the articling requirement altogether (for an interesting take on the issue, see Dean Lorne Sossin of Osgoode Hall, “Should Articling Be Abolished?” 2010).  Instead, they would prefer to see articling replaced with a two to three month-long transitional licensing program, consisting of online courses on both substantive legal issues, and business, professional, ethical issues.

The Report’s Main Recommendation: the Law Practice Program (LPP)

The LSUC’s report recommends the creation of an approximately eight-month training program to replace the articling requirement.  It would be composed of four months of training on specific competency areas, and a four-month co-operative work placement.

I. Training Program Component

The training component of the LPP will be delivered by one or more “third parties” who will deliver an approximately four-month (or longer) program on the “established competencies” currently contained in the LSUC’s articling goals and objectives.  These include professional responsibility, interviewing, advising, fact investigation, legal research, file and practice management, drafting, negotiation, and advocacy.  The LPP is also recommended to incorporate the use of practising lawyers as instructors or support staff.

The LPP will conclude some form of assessment or test, but that remains unclear.  One possibility is the creation of an in-person practical skills test, where candidates interview a client, negotiate, analyze an ethical problem, draft an opinion letter and write an affidavit.  In the words of the task force, “further analysis of this issue is required” (para 167).

II. Co-operative Placement Component

One of the goals of this co-op work placement is to help relieve access to justice issues in the country by making new legal graduates more available to work in high-needs areas.  The other aim is to keep a “practical work experience” component in the lawyer licensing process, which is one of the primary benefits of the articling experience.

It would consist of 17 weeks, or about four months’ work at a site that “meet[s] the goals of transitional training” (para 154).  The third-party deliverer appears to play a role in securing these co-op opportunities for its registrants, similar to post-secondary institutions who partner with employers to offer four-month placement opportunities.  The report does not specify how this would work.

Changes to Articling

The LSUC task force also included recommendations to reform the articling process.  Currently articling students’ progress in skills development during their 10-month placement is unmonitored.

For greater progress appraisal, the report recommends the creation of new documentation requirements for principals: a training plan, a mid-term evaluation, and a certification that the articling student is a “fit and proper candidate for licensing.”  The articling student must also contribute to the mid-term evaluation, and complete a final self-evaluation.  The task force postponed making recommendations on timelines, e.g. when students would choose to apply for articling positions or the LPP, and how this would fit with bar examination sittings.

Next Steps

The LSUC task force recommends that the two alternative requirements, articling and LPP, begin to coexist in two years — during the 2014-2015 articling term.  All currently enrolled law students who plan to graduate 2014 and later are affected, and may enrol in the LPP as an alternative to articling. Third-party LPP providers will have to be identified and approved.  The assessment measures used to test graduates of the LPP will also have to be crystallized.

Issues and Concerns

The report’s recommendations raise several important issues and concerns.

I. Increased Financial Burden on Law Graduates

Less articling placements are available in part because training a new law graduate is expensive.  Articling positions are traditionally paid, and the salary of a legal practitioner in training can be a heavy burden, especially on private firms of less than 10 lawyers.  The task force recommends that the LPP become an alternative to articling.  Who will pay for what will essentially become a post-graduate online training requirement?  Law graduates, after paying for a degree that isn’t enough to get them a job.

Furthermore, the report suggests that the co-operative work experience placement will be unpaid.  Increasingly, unpaid articling positions are offered to those unable to find paid positions.  Combined with the swelling costs of a legal education in Canada, this will only further burden law students with debt post graduation, and limit their options.  The LSUC task force puts financial responsibility for debt squarely on the shoulders on new entrants to the legal profession.

The problem is that heavily indebted law students may not be able to financially justify working on access to justice issues, working for vulnerable populations, moving to rural areas, or other areas that do not support high legal costs.  Students who work in those areas as part of an unpaid articling position or co-op term will quickly move on once their debts require repayment.

Does this justify abolishment of the articling and LPP requirement?  No, because quality concerns about the newest entrants to the legal profession should remain a primary consideration of any reform.  However, the LPP cannot be said to be a solution to access to justice issues in Canada when it only adds to the costs of legal education.

II. Introduction of a Two-Tiered Licensing System

Another concern mentioned by the report is the creation of a two-tiered licensing system in Canada, where some law graduates have a full 10-month articling opportunity with a law firm, and others have to pay for an online course and a four-month unpaid co-op placement.  Ensuring both paths remain consistent, and produce equally competent legal professionals, will remain a challenge over the next five years.

This challenge can be met by detailed evaluation methods that emphasize practical skills.  The quality and cost of the proposed LPP program remains to be seen, but there is potential to create a system that produces better legal professionals than it does today.  The existence of two programs will be temporary.  After a five-year pilot, I think it will result in the combination of a single result that combines the best components of the two.

III. Isn’t there a role for law schools?

The most surprising omission from the report was the brevity of the section on law school reform.  Let’s look at the problem from another perspective: students now pay to attend law school for three years, graduate, and then rely on law firms to offer them a paid 10-month articling term to learn all the practical skills they need to become lawyers.  Law schools have essentially discharged their responsibility to train legal professionals.  Along with the LSUC, up until now they have put that duty on private and public legal practitioners.  Private practitioners can no longer afford to train the increasing numbers of law students that schools are graduating.

These graduates, depending on the richness of their summer experiences, know how to study, but may never learn in law school how to negotiate, interview, draft legal documents, or advocate for clients.  This report provides law schools with an excellent opportunity to enrich their educational experience, by offering practical skills development courses (in person or online) that satisfy the demands of the LPP.  The LSUC task force has said it out loud: these skills can be taught outside of a firm.

Law schools will remain valuable as institutions of higher scholarship with opportunities to study legal philosophy under academic supervision.  However, most law students choose to attend law school to become lawyers, not academics.  Let’s hope Canadian law schools take up this opportunity to lead from the front.

Call for Action

What do you think?  Is this requirement enough of a change?  Who should offer the LPP requirement, and how should it be evaluated?  Or should articling be abolished altogether?  Comment here, tell the LSUC, contact your alma mater or current Canadian law school.  This may change the face of the legal profession in Ontario, and could be the beginning of changes across Canada.

Comments

4 Responses to “LSUC Publishes Articling Task Force Report”

  1. Anonymous on October 18th, 2012 3:18 am

    Ignoring the obvious stupidity of a two-tiered system, they completely missed the mark on this. There is no articling job shortage. Period.

    1. In 2007/08, 93 international candidates were registered in the licensing process. In 2010/11, 272 international candidates were registered. Real answer: Bond (Aus), Cooley (US), Undergrad Law Schools in England and other two-bit schools have started letting more Canadians in who couldn’t crack the LSAT – at a high price might I add.

    2. Class size increases range from school to school; the University of Ottawa has the highest percentage increase in class size over that period at 33.2%. Ottawa had 40 unplaced students in 2011. Coincidence? Back in ’09 Ottawa misplaced a quarter of their apps and to remedy the problem increased the class size.

    3. They say 200 new positions are needed? Wrong! Remove the “international” candidates trying to bypass the system (i.e. the Canadian citizens who didnt want to wait & re-write the LSAT because daddy could pay for them to goto Austrailia for 2 years), and tell Ottawa to go back to their pre-2009 numbers. And everything is fine.

  2. UO Grad on October 18th, 2012 11:42 pm

    Although it may be the start of a necessary revamp of the education and accreditation process, my first impression is that the 2-tier system during the pilot program is going to aggravate the existing Darwinian division between those graduates who make it (get articles), and those who do not. Not sure we need systemic stigmatization – law students are pretty good at self-stratification on their own – this is not going to make things better. Cue the snarky “Oh, yer a LePPer…” comments.

    As far as the proposal itself, call it an LPP or whatever, but at the end of the day I think they are essentially describing a 4th year of law school that is a combination of applied skills classes + a semester co-op.

    Ultimately, that is probably what it will become if the pilot project shows any modicum of success. Nobody likes to say 4L, but its inevitable. Firstly, it validates LSUC’s perception and plan to deal with the perpetual articling crisis problem – a little education never hurt nobody. (Though seriously, with a minimum of digging you quickly realize that articling has always been a crisis it seems – up to the 90′s you had to do a bar admission course after law school, they scrapped that to fix the problem and, well, here we are again.)

    Secondly, it gives law schools an opportunity to leverage their existing facilities and faculties to generate more revenue per student. The big concern is whether or not faculty at a law school can or will have the ability to teach relevant practical skills – they seem enamoured by the idea that law is an academic pursuit more than a technical vocation. As an aside, ideally this might in turn justify reducing 1L enrollment to more industry sustainable numbers and reducing bloating class sizes. That’s unlikely though since schools (rightfully) separate academic & career success: its not the school’s job to make sure you get a job when you are done, so they are unlikely to reduce enrollment. On the bright side, as an official university student, your bloating debt should get held off during your 4LPP year.

    The idea of clamping down on LSAT-dodgers is a good point too – at least mandate that they do a year of Cdn law school to qualify to write the bar + the additional 4th skills year too. This works as a disincentive to go abroad and should curb numbers flooding the profession while feeding more cash cows to the universities. If it results in more students getting work after graduation, its potentially a win-win. Ok, maybe make that a capital P in Potentially.

    Overall, its an interesting proposal, and these are tough times, but the devil is in the details and I think LSUC’s implementation timeline is optimistic at best – there’s no details on what the LPP courses will teach, how and what the evaluation standards are, and curriculum development will likely take longer than expected. Will LPP students have an unfair advantage on the bar ads during the pilot? I the interim, the part suggesting LPP costs will be offset by charging everyone a higher licensing process fee will go over really well with people to actually make it into the articling stream (see para 181). I hope there is more problem-solving than polarization in the revised process, but we’ll just have to see how it plays out. Fun times ahead for all.

  3. Frowny Face on October 22nd, 2012 5:32 pm

    While I do not completely agree with my colleague above, I do think that certain law schools need to reverse certain admission trends. There is an issue with the market being flooded by students in numbers that would not exist were it not for reckless increases like those of Ottawa. And the creation of yet another law school in this province during this “crisis” is yet another example of what I can only speculate as being greed. Admitting more people to take part in an already saturated system is simply unconscionable and makes law schools seem as uncaring as the various teachers’ colleges in this province.

    There needs to be a freeze on increases of admission, a reduction in the substantial increases that have been made by the worst offending law schools, and the creation of yet another law school should not go forward. It is absolutely insane that this was allowed to go ahead before any real thought was given to how those graduates would be able to get licensed and find work after graduation when the current crop of students are having a hard time already.

    International admits who had the money to study abroad but not the LSAT scores to study in Ontario could be another source of numbers to cut down on, but people with a genuine interest to study abroad and who got into good schools should not be punished for the actions of those who try to circumvent the system.

    As the LSUC seems rather adverse to heavy changes, it would seem some simple forced reductions could restore some imbalances fairly quickly. The only other solution that would allow us to fix the current problem without substantial changes to the Ontario system would be through the creation of an Ontario Preference Program, whereby graduates, or at least residents, of Ontario would have preferential selection with law firms. Perhaps this could be achieved by having the first round of application considerations open to Ontario students only. Followed by opening up to the rest of the country, and finally to those who graduated from non-Canadian law schools.

    The Law Society of this province has a duty to look out for the law students and future lawyers of this province; those that have stayed, attended law schools, and intend to practice in Ontario.

    The obvious draw backs are that very low achieving law students who might not otherwise be hired, even in years where there is demand rather than surplus, will be getting jobs that could have gone to a high ranking Ontario resident who simply studied in another province. There is a solution to this, however, and it involves coupling this new preferential program with the earlier mentioned reduction in the number of students admitted, specifically by curtailing the recent massive increases of certain schools.

    When you increase the number of spots available, you don’t increasing the number of top students available. You simply widen the gap between the top and the bottom until you start to see students who simply cannot cut it in law school and just stumble on through the years to join the ranks of the unplaced… or worse, getting placed at the expense of a better candidate who perhaps had something go wrong in an interview.

    The top isn’t the top if you start including more and more of the bottom.

    No to sound elitist about it, but isn’t that the whole point of having admission standards? To differentiate between the top and bottom?

  4. UO Grad on October 25th, 2012 11:44 am

    Although it may be the start of a necessary revamp of the education and accreditation process, my first impression is that the 2-tier system during the pilot program is going to aggravate the existing Darwinian division between those graduates who make it (get articles), and those who do not. Not sure we need systemic stigmatization – law students are pretty good at self-stratification on their own – this is not going to make things better. Cue the snarky “Oh, yer a LePPer…” comments.

    As far as the proposal itself, call it an LPP or whatever, but at the end of the day I think they are essentially describing a 4th year of law school that is a combination of applied skills classes + a semester co-op.

    Ultimately, that is probably what it will become if the pilot project shows any modicum of success. Nobody likes to say 4L, but its inevitable. Firstly, it validates LSUC’s perception and plan to deal with the perpetual articling crisis problem – a little education never hurt nobody. (Though seriously, with a minimum of digging you quickly realize that articling has always been a crisis it seems – up to the 90′s you had to do a bar admission course after law school, they scrapped that to fix the problem and, well, here we are again.)

    Secondly, it gives law schools an opportunity to leverage their existing facilities and faculties to generate more revenue per student. The big concern is whether or not faculty at a law school can or will have the ability to teach relevant practical skills – they seem enamoured by the idea that law is an academic pursuit more than a technical vocation. As an aside, ideally this might in turn justify reducing 1L enrollment to more industry sustainable numbers and reducing bloating class sizes. That’s unlikely though since schools (rightfully) separate academic & career success: its not the school’s job to make sure you get a job when you are done, so they are unlikely to reduce enrollment. On the bright side, as an official university student, your bloating debt should get held off during your 4LPP year.

    The idea of clamping down on LSAT-dodgers is a good point too – at least mandate that they do a year of Cdn law school to qualify to write the bar + the additional 4th skills year too. This works as a disincentive to go abroad and should curb numbers flooding the profession while feeding more cash cows to the universities. If it results in more students getting work after graduation, its potentially a win-win. Ok, maybe make that a capital P in Potentially.

    Overall, its an interesting proposal, and these are tough times, but the devil is in the details and I think LSUC’s implementation timeline is optimistic at best – there’s no details on what the LPP courses will teach, how and what the evaluation standards are, and curriculum development will likely take longer than expected. Will LPP students have an unfair advantage on the bar ads during the pilot? I the interim, the part suggesting LPP costs will be offset by charging everyone a higher licensing process fee will go over really well with people to actually make it into the articling stream (see para 181). I hope there is more problem-solving than polarization in the revised process, but we’ll just have to see how it plays out. Fun times ahead for all.

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