By Professor David Wiseman, the joint co-ordinator of the Social Justice Caucus at the Faculty of Law, University of Ottawa.
The Law Society of Upper Canada’s Articling Task Force has recently released its Final Report Pathways to the Profession: A Roadmap for the Reform of Lawyer Licensing in Ontario. The Task Force was set up in response to the perceived ‘crisis’ of a roughly 10% shortage of articling placements. After releasing a discussion paper, the Task Force went on a consultation tour and received over 100 written submissions from individuals and groups. Ultimately, the Task Force finds itself split and, in my view, each camp’s attention to another crisis – of access to justice – is disappointing.
The majority is recommending a two-pronged initiative that, first, seeks to improve regulatory oversight and evaluation of articling, principally through an end-of-articling lawyer-skills assessment program. The second prong would establish a pilot project for a ‘Law Practise Program’ (LPP) as an alternative to articles, using third-party providers. The LPP would involve 4 months of skills-oriented education in a simulated context, followed by a 4-month co-op placement in a legal practise. Licensing candidates (i.e. law grads) will bear the full cost of both of these prongs, but the costs will be equalized across the two alternatives. The majority estimates that licensing fees will increase from $2,950 (for 2013, in the articling-only current system) to $5670.
A minority report of the Task Force recommends the abolition of articling and the establishment of a post-licensing program that will aim regulatory oversight and assistance, including systemic mentoring, to new lawyers working in high-risk contexts, especially sole practise. Supplementary material released by the minority indicates that the costs of the post-licensing regime would mostly be borne by candidates but would increase the fees by a lesser amount than the majority’s proposals – from $2950 to $4,040.
From the perspective of access to justice, neither the majority’s nor the minority’s positions have much to recommend them. Both positions do at least offer to address one existing barrier to access to the profession, namely, the tying of available articling positions to a combination of market forces (the job market for private articles) and government finances (government and legal aid articling). Under the present system, where the medium-to-large firms provide the lions-share of articling positions, the number of available positions is determined by market forces and leaves significant numbers of academically qualified candidates unable to secure articles and therefore unable to enter the profession – and there is long-standing evidence that members of equality-seeking groups suffer discrimination in hiring as well. Establishing an LPP or abolishing articling will provide a pathway for avoiding these barriers.
However, the increase in licensing fees associated with the majority’s proposals may establish or exacerbate an alternative barrier to entry to the profession. Indeed, if medium and large law firms continue their existing practise of paying the cost of licensing for their articling students, the financial differential between articling and LPP stream candidates will be significant (not to mention the fact that the latter will not be receiving salaries). There is no mention of bursaries or financial assistance for the LPP in the majority report. There are also concerns, voiced by the minority, that LPP stream candidates may be stigmatized as having had to take a ‘second-best’ route to licensing.
From a broader access to justice lens, neither the majority nor the minority offer any meaningful recommendations for addressing the now well-documented crisis in unmet legal needs in Ontario. This ‘other’ crisis was of particular concern to an ad hoc working group on access to justice and articling set up at the Faculty of Law at the University of Ottawa to make submissions to the Task Force. As well as discussing the abovementioned existing and potential barriers to access to the profession, the working group argued that the Task Force ought to give priority to those proposals for changes to professional licensing that would make a meaningful improvement to access to justice. We suggested, for instance, that Ontario lawyers pay a levy of $100-$200 to fund either 100-200 stand alone access to justice articling positions or a civil law mega-clinic (offering a similar number of articling positions). We also suggested that any LPP type program ought to be specifically geared to providing real-client service in areas of unmet civil legal needs.
The majority report was dismissive of the idea of levying the profession, speculating that the levies required would not be ‘viable’ and pointing out that to the extent that high debt loads are a problem for new law grads seeking articling positions, this is the fault of the law schools for raising tuition and is beyond the jurisdiction of the LSUC. As for the underlying suggestion that articling reforms become a vehicle for improving access to justice, the majority asserted that it lacked the mandate to give meaningful consideration to combining the objectives of articling reform and access to justice. It also took the position that the access to justice obligations of the LSUC needed to be looked at ‘holistically’ and pointed to other LSUC committees charged with examining access to justice. In my view, hiding behind a supposed lack-of-mandate and crossing-collective-fingers for a holistic review is unfortunate – a holistic review would surely benefit from a diversity of perspectives on the relevance of access to justice from across the spectrum of LSUC committees. Unfortunately, the majority has taken the Articling Task Force out of the conversation. It must be acknowledged that the majority does suggest that the 4 month co-op placements of the LPP be undertaken in areas of unmet civil legal needs, but this can hardly be expected to make much of a contribution at a systemic level.
The minority at least purports to be more concerned about broader access to justice, but the results are no better. In particular, the minority takes the position that abolishing articles will allow more people to enter the profession and, therefore, there will be more legal service providers and so unmet legal needs will be met. This is hard to believe – the existing crisis in unmet civil legal needs is not caused by a shortage of lawyers, it is caused by a shortage of affordable (including free) legal services. More lawyers may produce some price competition in parts of the legal services market, but it is hard to believe that this will trickle down to many who cannot currently afford a lawyer.
Overall then, from an access to justice perspective, the work of the Articling Task Force is disappointing.