Continuing from yesterday’s post, here’s the conclusion of a two-part running commentary on the Interim Report To Convocation from the Law Society of Upper Canada’s Licensing and Accreditation Task Force. Again, this won’t be a blow-by-blow account of the report, but I do recommend you read the whole thing. This article (which is also appearing today at SLAW) will simply touch on some of what I regard as the more relevant and noteworthy paragraphs on articling in an altogether remarkable document. Here we go.

83. The Law Society’s articling program has been an established part of the licensing process for decades. It reflects the transition from the earlier legal education system that was predominantly an apprenticeship system to the university model that replaced it. It has provided students-at-law with an opportunity to experience and learn about the practice of law in a relatively risk free context of supervised law firm placement. In the Law Society’s current licensing process the articling term is 10 months. Candidates may begin articling at any time after the end of the skills and professional responsibility program.

84. Unlike the medical model of education, however, articling is not interwoven into the framework of legal education. There is little direct link between the education candidates receive during law school and the “clinical” component that is articles. The profession has long viewed the articling program as a bridge between the two worlds of education and practice.

Just setting the stage here.

90. [I]ncreased law school enrolments, possible establishment of new law schools, increasing numbers of internationally trained candidates [are] problematic for the articling program…. [I]n a system that appears able to place approximately 1,300 articling students in a stable economy, it is likely that the number of candidates seeking articles in 2009 could be approximately 1,730. This does not reflect additional candidates that would come from any new law schools.

To put that in its proper perspective: in 2001, the number of new applicants for articling positions was just 1,247. The system is being overwhelmed.

97. To assist its consideration of the issues surrounding the articling program, the task force has identified what it believes to be the goals of the program:
a. To provide law school graduates with exposure to certain defined practice skills in a professional environment in a consistent manner across articling positions.
b. To provide law school graduates with exposure to professional responsibility and ethical issues in a professional environment, in a consistent manner across positions.
c. To provide law school graduates with the opportunity to evaluate practice environments for the purposes of subsequent professional life.
d. To fill law school gaps in law students’ development as professionals.
e. To facilitate the transition to sole or small firm practice.

If you didn’t see “hone their QuickLaw skills noting up cases,” “undertake due diligence on reams of paper in a drawn-out discovery process” or “serve a Statement of Claim on an elusive defendant” on that list, it’s probably because the articling process ostensibly should involve these sorts of things only occasionally.

Articling is apprenticing: learning by watching, listening, asking and, most importantly, doing. It’s a superb notion in the legal profession and, in the days when it was working (not within my living memory), it helped cement the law’s reputation for mentoring, collegiality, and generosity of time and spirit towards newcomers.

Taking on an apprentice is a serious task, because you’re assuming responsibility for helping the new recruit learn to do what you do. Some articling principals take the apprenticing responsibility seriously, and I know a number of lawyers who testify enthusiastically about the tremendous training they received during their articling year. But many articling principals don’t, or can’t, do the same.

I don’t think it’s because we’ve become nastier people. I think it’s primarily because articling, in the form laid out above, simply doesn’t fit the business model most law firms use. Law firms – especially the large urban firms that offer most of the articling positions in Ontario – are not genial partnerships where new arrivals are tutored and mentored. They are businesses, they operate in an increasingly rapacious environment, and their compensation and promotion systems don’t reward the development of younger talent.

Most law firms, I think it’s fair to say, don’t even train their associates and junior partners especially well, let alone newly graduated quasi-lawyers. Now, with clients increasingly demanding higher-value performance and partners equally demanding profit-per-partner growth, training and mentoring have largely become optional extras. In most large law firms, new lawyers are worker bees, not apprentices. That simple fact alone makes most of the goals set out in Paragraph 97 unattainable in the current environment.

102. The task force has identified three possible ways to address the issues the articling program is facing. None of the options is new. The 1972 McKinnon Report addressed some of them. Other jurisdictions, particularly in the United Kingdom and Australia, have adopted some of them. Perhaps none of them is without criticism. But the task force is convinced that something must be done beyond exhorting the Law Society to try harder to fund more placements and improve quality. Something more fundamental must be done.

This is, if I may say, an unusually blunt and honest admission of a couple of salient facts: (a) the articling system is not working well (and figures to work less in the near future, given the reasons summarized in paragraph 90) and must be replaced, and (b) each of the suggested options has its flaws too.

I highlight this paragraph because we need to accept that whatever solution the law society eventually accepts is going to be imperfect. The hope is that it will be less imperfect than what we have now. Not exactly a stirring vision, but a dose of reality is always a welcome tonic in this profession.

103. There are three options on which the task force is seeking comment and advice:

a. Continue the program, but make it clear that the Law Society makes no guarantees that candidates will find employment.

I’ll take each of three suggested alternatives in turn. (Addendum: Melissa Kluger notes that Convocation has added the ever-popular fourth option, “consider other options.”) As the report goes on to explain, this option is essentially the status quo, but delivered openly and honestly rather than with reluctance and embarrassment. The truth is that the law society can’t guarantee articling positions now, although it does twist itself in knots trying to place students through cajoling, wheedling and other persuasive methods.

As the task force observes, the articling contract is between a student and a principal; the law society is an interested bystander, but one without any power or standing to intervene. This first option would at least allow the LSUC to address the situation plainly, lose its guilt complex, and abandon any pretence that its mandate of governing the profession in the public interest includes job-hunting services for new graduates.

The task force goes on to note a related stark reality: among those students who don’t obtain articles, certain groups are overrepresented, including aboriginal students, those with disabilities, and francophones, not to mention internationally trained students. If the law society chooses to step back from its current role of equity advocate in articling, “the profession may be increasingly uncomfortable with the consequences,” says the report. Nobody has a good answer to this question yet, but one will have to be found. Still, there’s one more thing that should be noted here in passing.

There are a lot of possible reasons why a newly graduated lawyer can’t find articles. He might, as noted above, be a victim of overt or covert discrimination. She might have difficulties with the standard interview process, upon which so much of the subjective hiring decision rides. He might simply be unlucky — I have a friend who’s now a very successful litigator for a Toronto boutique who was shut out of the articling process at the time. But there is another group that is heavily represented among those who don’t get articles: those who aren’t really all that qualified.

Every graduating class has a bottom X percent who performed poorly compared to their classmates. Their law degree is valid, but their transcript contains a lot of consonants and no vowels. Yes, some very good lawyers didn’t do well in the classroom setting, for a variety of reasons. But as a general rule, if your academic record is poor compared to your compatriots, you won’t get a lot of job offers. That’s the marketplace at work, and it has never been more competitive than it is today.

If the law society chooses this recommendation — and for my money, I think that’s the likeliest outcome — we might be able to more easily accept that one of the things the articling process does is separate the wheat from the chaff, however harsh that might sound. The sooner that reality is discussed openly in the profession, and the quicker it filters back through the law schools and into the pre-law community, the better for all concerned. A law degree is not a license to practice law.

b. Accept that if there is to be an apprenticeship requirement, the Law Society should take responsibility for all candidates having an opportunity to qualify; develop an alternative stream for those unable to find a placement.

This is the most interesting option of the three, and if the law society is feeling sufficiently ambitious, might actually be the one I favour most. It’s based on an Australian model called a Practical Legal Training Course (PLTC), an alternative to articling for those who can’t land a clerkship with an employer.

In Victoria, for instance, the PLTC runs 31 weeks, 9 to 5 weekdays, and provides students with the requisite knowledge, skills and ethics training that they would (supposedly) receive were they articling. An added bonus is that the course can be taken online, a huge benefit for students in remote locations or with families or jobs. PLTC graduates are immediately ready to practise law. Sounds pretty good, doesn’t it?

Well, you can already guess the drawbacks. Numero uno, from the student’s point of view, is that you pay to take the PLTC, whereas you get paid to article. That is a not insignificant obstacle, especially as the cost of a legal education continues to appreciate in this country.

Another problem is that even an unsuccessful articling stint provides students with contacts, networks, potential mentors — “a foot in the door,” as the task force puts it. The PLTC introduces you to full-time instructors and other unsuccessful articling applicants, but no one who can eventually help get you a job.

A third issue is that, as the task force readily admits, the Law Society of Upper Canada is in no position to set up a PLTC, financially or otherwise: this would have to be a private-sector solution. I actually think this would be a tremendous opportunity for an innovative law school or bar association, but innovation has never been especially overabundant in our profession.

These three objections alone might well be enough to scuttle the plan, but they don’t touch on the most significant problem: a PLTC certificate would be the equivalent of a scarlet letter for future employers. It would create a permanent two-tier system of new lawyers: those who could get articles and those who couldn’t, and the latter group will always be regarded differently and even suspiciously at the interview table (not to mention, of course, by clients).

Morale among PLTC enrollees would probably be low — high-achieving law students relegated to the professional equivalent of summer school would be deeply discouraged, and many might opt to abandon law altogether rather than go through what could feel like a humiliating experience.

The task force makes encouraging noises about actions the profession’s leadership could take to buttress the PLTC’s reputation, and the Australian example shows that it can work. But there’s also an old saying about a sow’s ear and a silk purse, and I expect that this country’s legal culture would not be able to transcend that attitude.

It’s too bad, because there’s one thing about this program I really like — it might be the best way to train new small-firm lawyers and solos. The task force notes elsewhere in the report that more than 70% of all Ontario articles take place in the Greater Toronto Area, most of them in large firms.

But 32% of all lawyers in Canada are in solo practice, with an additional 33% in firms of 2-10 lawyers. Only 18% of Canadian lawyers practise in firms of 51 or more lawyers. The articling system, by default, is supported by Canada’s largest firms, yet the legal and cultural training they dispense to their students will be directly relevant only to a small percentage of lawyers called to the bar. If you start off on Bay Street and end up in Smiths Falls, your articling experience will likely have added next to nothing to your ability to sustain a good practice.

One of the goals of the articling program, as set out by the task force above, is to “facilitate the transition to sole or small firm practice.” You’d be hard-pressed to argue successfully that the typical articling experience in Ontario does anything of the sort. But a PLTC might be just the ticket. If the course were set up with an emphasis on helping new lawyers to open their own practices or operate in very small partnerships, it could provide training on precisely those things that solos need to know and that big firms don’t teach during articles: financial management, overhead costs, marketing, business development, client relations, and much more.

The PLTC could become a favoured option for new graduates with an entrepreneurial bent who don’t want the big-firm life, but do want to be part of the two-thirds of all lawyers in solo or small practices. Yes, it will cost them more money on top of their law school tuition, but they intend to be businesspeople, and there are numerous large institutions falling over each other to extend credit to small business. The ancillary benefits — helping achieve the law society’s stated aims to assist lawyers and promote access to justice outside urban centers, among others — are also clear.

And who knows? If the PLTC is truly successful in delivering top-notch training, then even some students who are offered articling assignments might nonetheless choose to attend the PLTC, to give them a head start on learning to be a successful lawyer. And if that ever happened, those law firms still offering articling positions might be motivated to upgrade the quality of training and mentoring available to their students. A little competition in the effort to attract and train the best new lawyers could be just what this profession needs.

The PLTC is far from a perfect solution, but if the right private-sector partners could be found — and if, as the task force observes, “a significant shift [occurs] in the way in which the profession and the Law Society approaches and thinks about practical training” — I think it would really be worth a shot.

c. Abolish the articling requirement.

And here we are at Def Con 1. The task force notes the irony that while Ontario contemplates abolishing articles, many American states look longingly at the Commonwealth articling system as a better way to transition new graduates into the practice of law (though none has yet followed our lead in this regard).

The report doesn’t have much to say about this option, beyond observing that the ramifications for such a move would include public doubts about the competence of new lawyers and renewed scrutiny of the law’s self-governing status. That alone would probably be enough to make Convocation turn and walk rapidly in the opposite direction, even though either of those two outcomes could feasibly materialize if the articling system goes unreformed.

I don’t get the feeling the task force much likes the idea, and I can’t see the law society taking such a bold and irreversible step — not yet, anyway. But, just as the Australian examples shows the PLTC system can work, so does the American example demonstrate that, with some modifications, this approach could work too.

The enormity of the change should cause us to approach it with caution, but we should not dismiss it out of hand without talking it through first. I will say this, though: abolishing the articling system would, within the space of five to ten years at the most, completely change the character of Canada’s law schools, like it or not.

139. In the task force’s view, further limiting numbers who may gain access to the profession is not a reasonable or indeed viable option, for myriad reasons…

One last thing before signing off: the task force adds a little obiter dicta about “numbers in the profession,” which is a nice way of referring to those lawyers who are already in the lifeboat turning around and saying “No more! Cast off!” The task force, rightly in my view, rejects any notion that the profession could or should try to limit the number of new graduates.

Among the very good reasons: law societies have no power over the law school admission or graduation process, and trying to erect barriers to entry into the legal profession would get the immediate and sharp attention of various state and anti-monopoly bodies. If your pipes are leaking, the solution is not to use less water; it’s to fix the damn pipes already.

The task force has given the law society an excellent blueprint for doing just that, openly expressing some uncomfortable facts about the bar admission process and all but demanding that the profession’s governing body respond with alacrity. It’s important to remember that there are no ideal solutions, and that whatever the law society eventually decides to do will be met with criticism, some of it legitimate. But we can do better than we’re doing now, and the task force deserves a lot of credit for steering the profession in the direction of this inconvenient truth.