Articling Rehabilitated?: Eight Questions

Wednesday, November 28, 2012

Articling Rehabilitated?: Eight Questions
* Amy Salyzyn, Ontario lawyer and J.S.D. Candidate, Yale Law School
 Last Thursday was a big day for Ontario lawyers and their governing body. Following months of consultation and hours of debate, Convocation (the monthly meeting of Benchers, the directors who govern the Law Society of Upper Canada) approved a pilot project that will change—for at least its initial three-year duration—how lawyers can become licensed in this province.
Beginning in 2014-2015, prospective lawyers will be able to fulfill the “transitional training component” of the Law Society’s licensing process by either: (1) articling or (2) completing a new Law Practice Program (“LPP”). The Law Society will issue a Request for Proposals (“RFP”) seeking one or more third party providers to deliver the LPP. Although it is not yet clear exactly what the LPP stream will look like, the motion establishing the pilot project contemplates an “approximately” four-month training component followed by a four-month “cooperative work placement”.
Much ink has already been spilled about the desirability of a two-stream transitional training process. Also hotly debated have been alternative proposals to abolish articling or to maintain the status quo. Some commentators, including Professor David Wiseman earlier in this blog, have pointed out shortcomings in the options presented for consideration and in the process for considering these options. With Thursday’s decision, however, a new conversation begins. Our critical energies need to now turn to the implementation and evaluation of the pilot project. In this spirit, I humbly offer the following eight questions/watch points for consideration moving forward:
(1)   How much will (or should) the LPP cost? The Law Society Majority Report recommending the two-stream pilot project uses $7,000 as an approximation for the cost of the LPP. This would be in addition to a $2,950 licensing fee (incurred by all candidates) and possibly another $1,320 to pay for a formal assessment component, making for a total potential cost of $11,270 per LPP candidate (paras. 177-182). This is an astonishing amount of money. Whether such high costs are objectively necessary is an outstanding question: the $7,000 approximated cost is modeled on approximated costs for an Australian practical legal training course (para. 179) and not a considered assessment of what financial resources would be required to implement the proposed Ontario LPP. Having now been offered as an estimate, however, there does seem to be a risk that potential third party providers will be inclined to revert to these numbers in developing proposals to deliver the LPP. To avoid being oversold on the cost of the LPP, the financial components of such proposals will need to be rigourously vetted.

(2)   How will the cost of the LLP be distributed among members of the Law Society? In recognition of the projected high costs of the LPP, the Majority Report suggests that such costs be equalized across all licensing candidates (para. 181). On Thursday, Convocation went a step further and passed a motion to approve that there be “an appropriate member contribution to the costs of the pilot project.” As always, however, the devil is in the details. What is an “appropriate” member contribution? Will the contribution be intended to fully or partially subsidize the program? Recognizing that there is a significant spectrum in how much Ontario lawyers make, will member contributions be tied to income earned? The answer to this last question seems particularly important given that, as reported in the Ontario Bar Association’s submissions to the Articling Task Force: “[s]ome sole practitioners who play a critical role in access to justice by serving impecunious clients have advised that the feasibility of their practices would be jeopardized by the increased Law Society fees” that would be required to subsidize additional articling spots (h/t Lee Akazaki). Although the eventual member contribution for the LPP may be a smaller amount than what was contemplated to subsidize additional articling positions, there remain concerns about having all members be shouldered with subsidizing LPP spots as this will differentially impact those members earning the lowest incomes.

(3)   How will the cost of the LLP be distributed among LPP candidates? Presuming that member contributions will come to provide at least a partial subsidy of program costs, will this subsidy be offered to every LPP applicant or on a needs-basis? If a needs-basis is used, how will need be determined? Will the subsidy cover the living expenses of applicants for the duration of the LLP program? If not, how will applicants who do not have the financial means to cover their living expenses for the duration of the LLP be treated? Although those candidates currently participating in transitional training (read: articling students) receive no subsidies from the Law Society, LLP candidates face a much harsher financial reality given that—as detailed below—they are unlikely to have employment income during the LPP or have the benefit of an employer paying their licensing process fees (as is currently done by many firms who hire articling students). If one of the objectives of the two-stream pilot project is to have a licensing process accessible to all interested candidates, these financial considerations cannot be ignored.

(4)   What efforts will be made by the Law Society and the eventual third party provider(s) to secure paid LPP work placements? The Majority Report states that “it does not consider it practical to require that third party providers ensure paid placements” but it “hopes that third party providers will seek out paid placements whenever possible” (para. 153). Given that the shortage of paid articling positions was the catalyst for the very creation of the Articling Task Force, it seems plausible—if not inevitable—that the vast majority of LPP placements will be unpaid unless creative and conscious efforts are made in this regard. The prospect of unpaid LPP positions creates a potentially huge financial gap between those licensing candidates who article and those who undertake the LPP stream. Securing paid placements should not simply be a hope but should also be a priority.

(5)   How will LPP provider(s) be chosen? At this stage, it is not clear in any meaningful detail what process or criteria will be used to evaluate the proposals received in response to the Law Society’s RFP. The motion passed by Convocation only stipulates a few vague criteria. It states, for example, that the Law Society is seeking an LPP that “includes quality assurance standards” and “provides training on the established competencies.” Many questions remain outstanding. Will there be any preference given to public versus private entities? What level of profit-making, if any, will be tolerated? Will the process for choosing the provider(s) be transparent? What opportunities will there be for input from stakeholders?

(6)   How will possible self-interested behaviour by LPP provider(s) be monitored and checked? Although the third-party provider(s) delivering the LPP have not been chosen yet, it is clear that these will be third-party providers: private or public entities with their own distinct mandates who, without any bad faith intentions, risk self-interested behaviour including, for example, over-emphasizing program success. The multiple lawsuits that have sprung up in the United States against law schools for allegedly misrepresenting their job placement rates stand as important cautionary tales.

(7)   How will the impacts of the two-stream pilot program on equality-seeking groups be measured? A major concern that was repeatedly voiced during the debates preceding the approval of the two-stream pilot program is possible adverse effects on equality-seeking groups. The questions that we need to be asking to effectively evaluate the effect of the pilot program on equality-seeking groups need to be carefully thought through and answers to them need to be diligently pursued. As smartly noted by Omar Ha-Redeye: “[i]nterpretation of quantitative information, especially as it relates to equity-seeking groups, should keep in mind the subtle and insidious manner in which discrimination occur.” Measuring these impacts will not be a simple or uncontroversial process, but it will be an essential process that needs to be transparent and inclusive.

(8)   How will the pilot project be evaluated? In developing its recommendations, the Articling Task Force engaged in a broad-reaching consultation process. In arriving at a decision as to what to do, the deliberations of Convocation were publicly accessible on the Internet. Canadian Lawyer Magazine reports that the debate on Thursday was watched online by about 500 people and that the Twitter hashtag #articling associated with the debate reached the status of being the top trending hashtag in Canada. This type of consultation and transparency, however, is far from routine in Law Society affairs. To take a recent example, on the same day that the pilot program was approved, the fate of the Law Society’s Parental Leave Assistance Program (“PLAP”) was also debated. This debate was not webcast and received, little if, any attention on Twitter. The process for evaluating the pilot project should be robustly consultative and transparent. We must not take it from granted that it will be.
No doubt, there are plenty of other important questions including, for example, a number related to the impact of the two-stream pilot project on the future of legal education. My hope is that these thoughts might be a helpful part of the beginnings of a new phase in our conversations about transitional lawyer training in Ontario. We’ve proven in the months leading up to Thursday’s decision that we care deeply about these issues; let’s not lose the momentum. Decisions about how this new pilot project will be implemented and evaluated will be made soon and there is too much at stake to not be engaged. The fight for a future legal profession that is inclusive, progressive and responsive to the public interest has just begun.

Designed by Rachel Gold.