Access to justice and Ontario’s articling crisis

It’s a scary time to be a law student. We’re on the cusp of great changes in the profession. Or so they say. I would argue the changes can’t come fast enough!

It’s no secret that the legal profession is a conservative one, one which is highly regarded by the upper-class of society and deeply embedded in centuries-old Western traditions and philosophy. It’s a self-regulating profession with an interest in preserving this status quo. Law attracts a particular type of student: someone seeking a safe, stable path to employment and prestige, who can meet the financial commitment and who is lured in by the financial reward. (These days, though, the I-don’t-know-what-to-do-with-my-life student is a close second).

Here’s the dilemma: most lawyers, and aspiring lawyers, hope to earn top dollar – even at the start of their careers. Yet, legal services are out of the price range of many that need them. A 2007 Toronto Star investigation found that a three-day civil trial in Ontario would cost $60,000 – more than the median family income in Canada. Meanwhile, access to legal aid is arbitrary, and funding for the program is insufficient. In leaving out low- and middle-income Canadians, we are facing an access to justice crisis.

At the same time, the Law Society of Upper Canada (LSUC) has focused its energies this year on addressing the “articling crisis.” The LSUC reports that in 2012, 15 per cent of applicants – roughly 1, 750 law graduates – were unable to get an articling post (a term for the 10-month mandatory work component necessary to be permitted to practice law). There’s plenty of blame to go around, as the cause of the trend is uncertain. It has been attributed to higher enrollment, the pedagogy in law school, economic uncertainties, applicants themselves, and any other factor that might be able to take the blame. In light of this, the LSUC created a task force to study the subject, and this past fall agreed to initiate a three-year pilot project. The project commences in 2014, and throughout law schools in Ontario, students now dread their futures as guinea pigs.

The new plan would offer an alternative option to students who do not receive a traditional articling position. This option will include an in-class law practice program provided by third parties, culminating in a final assessment, and followed by a co-op work placement. This option is to be completed in a total of eight-months.

The main critiques of this solution – and to the existing articling system – are that the plan:

  • Does not address the fact that most of those who cannot get articles are visible minorities, linguistic minorities, aboriginal students, or mature students who have historically struggled with articles. Bencher Clayton Ruby referred to this as “a bottleneck now facing visible minorities” in their search for articles. (The Black Law Students Association of Canada wrote a submission to the LSUC’s Articling Task Force that is well worth reading.)
  • Lacks third-party providers for the course, meaning that the price of the program is still unknown. Regardless of the cost, forced unemployment for 8 months certainly puts students at a disadvantaged, especially as loan-repayments begin to approach.
  • Fails to recognize that part of the problem is that articling is unregulated and unmanaged. Though it is required for students hoping to become lawyers, the Law Society has been unsuccessful is encouraging more firms to hire and cannot force them to do so. Of course, it also can’t compel them to take on coop students! With so few firms hiring, this hardly seems to be a fitting solution. Swapping an articling shortage for a co-op shortage, perhaps?
  • Is two-tiered, with traditional articles regarded more favourably. Those completing the alternative program are likely to be stigmatized as being less qualified. To those who say that stigmatization is unlikely, perhaps consider how arbitrary Maclean’s rankings or simply sharing an alma mater with a potential employer can impact your chances when competing for certain jobs.

The issue with articles is not simply this new regime, but rather with the concept of articles as a whole. First, the articling requirement assumes that students do not gain practical experience during their time in school or during their summers. Especially among those of us with a social justice bent, practical experience in clinic work, pro bono work, internships, community volunteering, legal education and the like is a must for personal, as well as professional, fulfillment. Many students are ready to roll up their sleeves from day one, and they should be credited for these efforts.

Second, the articling system has disadvantaged some groups more acutely than others. This goes back to the culture and nature of the profession and its gatekeepers. The firms that hire articles are often looking for a particular type of individual: young, unattached, apolitical, in perfect physical and mental health, and incentivized by money – a blank slate! There are many people who do not meet that profile, and on that basis alone they will struggle to find articles, particularly in larger markets where there are more students vying for a static number of placements. Yes, the class make-up in many schools in changing, but the “average” student is still supreme when it comes to firms that hire articling students.*

The profession does benefit from those with an atypical profile, yet the approach to the two legal crises in Ontario – articling and access to justice – has failed to recognize that. Instead, those legal crises have been treated in isolation. This is a missed opportunity.

The law needs students who are interested in working with the under-served populations at the heart of the access to justice issue, and who have the background from personal or previous professional experience to do so successfully.

How do we train those students who do want to do legal aid work? Those who want to have a social justice-oriented practice? Those how come from marginalized communities and want to use their new skills to give back?

The new articling system may be a help, but it’s up to the LSUC make it work. Co-op posts must address training needs in these and other under-served areas, such as promoting opportunities in rural or aboriginal communities, or with small firms and sole practitioners. The LSUC, and all members and students of the profession, need to shift the professional culture to one that is more in touch with the communities it serves or should serve.

The legal profession as a whole needs to make a clear connection between access to justice and the recruitment and training of a broader range of law students and graduates who are willing and enabled to do that work. As long as our legal system only privileges the wealthy who can afford the status quo, we cannot truthfully refer to it as a system of justice.

To law graduates of 2014, 2015, and 2016: let’s be vigilant and vocal as this pilot project moves forward.

*Note: I do not think, for the most part, that these individuals are bad students, and often are not less qualified. I also do not think being accepted for an articling position is where you want to filter out those unfit to practice. That filter should be in law school, or upon entry into law school—of course failing law school is nearly impossible. I wonder why…

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One thought on “Access to justice and Ontario’s articling crisis

  1. sashacragore says:

    Great blog entry. I’ve just written one with a similar perspective here:

    http://legalinjustices.net/2014/02/28/the-new-law-practice-program-and-the-articling-fee-hike-taking-the-high-road/

    I think it’s important to see this as the first step in a broader movement away from an overly protective profession, and recognize the role we all have to play in making sure these sorts of changes continue.

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