Law Society Should Rethink Two-Tier Articling System

  • October 28, 2013
  • BakerLaw

Toronto, ON, October 28, 2013 — The Law Society of Upper Canada has been compelled to respond to disturbing evidence that its articling requirement is an impenetrable barrier for many qualified law graduates. Unless an articling position can be found within 2 years of completing law school, students already burdened with debt and hard earned expectations are removed from the licensing process.

There are simply not enough articling positions to go round.

Members of disadvantaged groups such as persons with disabilities, racial minorities and women are disproportionately represented amongst those who cannot get called to the bar for lack of an articling job.

But will the Law Society’s response be just as discriminatory as the status quo?

Rejecting the American approach of doing away with articling altogether, an option favoured by a significant minority of Benchers, a bare majority have decided to retain articling for those fortunate enough to secure a position and require the remainder to submit to a 4 month course and a 4 month period of internship.

Many crucial details of how this second tier program would actually operate remain undecided to this day.

Rather than operate the tier two articling program itself, as it does the articling program and the licensing examinations, the Law Society decided to put it out to tender. Bakerlaw was deeply concerned that the course/internship alternative would produce a legal underclass of exploited and permanently stigmatized lawyers. Rather than protest from the sidelines, we recruited an impressive group of advisors and submitted a Proposal, which can be viewed at the following link: Bakerlaw Management Articling Proposal.

Bakerlaw‘s Proposal was designed, to the extent possible, to ensure students were neither shortchanged on content nor would be regarded in the job market as inferior to those who served the traditional period of articles. Those sufficiently interested may wish to review the “principles” underlying the bakerlaw proposal beginning at p. 23 of our Proposal, by means of which bakerlaw sought to achieve these goals.

It became clear that one barrier could not be overcome. The 4 month internship was doomed to fail, however strong the 4 month educational program. If there was a shortage of lawyers willing to hire articling students, there was going to be virtually no members of the profession willing to consider paying a student intern.

Students, desperate to complete and get their call to the bar, would be compelled to submit to unpaid internships of little or no discernable value. Bakerlaw declined to comply with the RFP requirement of producing 80 internship positions, because these positions would have to be unpaid.

In the section of its Proposal beginning at p. 32, bakerlaw demonstrates that in Australia [the model which the LSUC claims to have adopted] there is no internship. Students choose between a 4 month course or an 11 month period of articles. Top students, and large law firms, were increasingly opting for the course rather than a period of articles. No stigma attaches to those choosing the course because it was steadily becoming the option preferred by the most advantaged.

In bakerlaw’s view, the only rationale for imposing the 4 month internship requirement is to prevent the alternative to articling from becoming an equally acceptable option to articling. In other words, there is no legitimate justification.

Such an alternative perpetuates rather than eliminates the discriminatory consequences of the status quo. Before locking into a plan that has not been well thought out, and will cause lingering damage long after the three year “experiment” is over, bakerlaw urges the Benchers to revisit their decision to impose the internship, and either end articling altogether or create an alternative course which fully meets all the goals that a period of articles is intended to fulfill, without additionally imposing a punitive and pointless internship.

– David Baker

The views expressed above are those of bakerlaw and, in particular, do not necessarily reflect the views of our partners in the proposal, the University of Ottawa Faculty of Law, or OCAD University.

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