Column

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The qualifications required of new Ontario lawyers has been the subject of virtually continuous debate for generations. Starting in the late 1950s, being called to the bar required (i) a law school degree, (ii) practical training through the bar admissions course and (iii) an articling apprenticeship. The bar admissions course came to an end in the 2000s. A law practice program (the LLP) has recently been added as an alternative to articling. The qualifications debate continues with the focus now being whether articling and/or the LLP should continue and, if so, in what form. The central question today is what, other than licensing examinations and graduation from law school, should be required before the call to the bar.

The intent of this column is to provide context for current debate by focusing on the competence mandate of the Law Society and by laying out some of the relevant history and principles that may be useful in thinking about all of this.

My ultimate point is that this is a debate that will never end – because there are no perfect choices and the proponents of one option can always demonstrate frailties in the other options being considered. While it is tempting to press for radical change, it is very difficult to have confidence that the change will actually be an improvement. Keeping focused on the competence mandate, it seems to me the best approach is practical incremental change primarily designed to ensure that new lawyers are competent to serve the people of Ontario and taking care to see that candidates for licensing are treated properly.

A brief history of a relatively long time

Until 1957, the Law Society ran legal education and training in Ontario. After much controversy, an agreement was reached in 1957 whereby university law school education became a requirement. The articling apprenticeship continued. A bar admission course was established. According to the historian Christopher Moore, the establishment of the bar admission course “satisfied the benchers’ continuing requirement for practical training. It also pleased the universities by allowing them to narrow their focus to the purely academic teaching they preferred”[1].

For the next four decades, being called to the bar in Ontario required an academic LLB/JD, practical bar admission course training and exposure to the realities of practice through articling.

In the never-ending debate, the future of articling arose soon after the late 1950s reforms. In 1972, a recommendation was made to Convocation for the abolition of articling[2]. This recommendation was rejected and has again been rejected again on several occasions over the years.

By the late 2000s, the bar admission course had been entirely discontinued and two licensing examinations had been established, but articling continued.

With the substantial increase of candidates and insufficient growth in articling positions over the last 15 years, the LPP was added as an alternative to articling several years ago.

Whether the LPP and/or articling will continue and in what form continues to be debated.

The Mandate of the Law Society – why do we care about qualification to practice?

People who are served by professionals ordinarily need professional assistance because they do not have the expertise to serve themselves. They cannot assess whether someone else is professionally competent to serve them nor whether they have been properly served. This is the central reason that professional regulation exists.

Like all professional regulators, the Law Society has two central mandates; ensuring that members of the legal professions are competent and ensuring that members conduct themselves properly. These mandates are made clear in section 4.1 of the Law Society Act which provides that it is a function of the Law Society to ensure that:

all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide

The professional conduct mandate is pursued by establishing Rules of Professional Conduct, by dealing with professional misconduct by investigation and discipline and by promoting proper professional conduct by practice audits and reviews. Much attention has been spent in recent years on the conduct mandate recognizing that proper conduct is better attained by proactive measures rather than just by reactive disciplinary measures and by the recognition that the law firm policies, procedures and practices ae very important in achieving proper individual conduct.

The professional competence mandate may be thought of as having two aspects. The first is licensing, ensuring that entry-level competence is attained. The second is competence in practice, ensuring that competence is maintained and that specific competence is achieved for specific areas of professional work. Like the conduct mandate, there are a number of ways that the Law Society fulfils and can fulfil the competence mandate.

The Competence Mandate

The Law Society of Ontario has spent much time and effort reflecting on its competence mandate. Its 1994 Role Statement recognized the obligation to govern the profession in the public interest to ensure that the people of Ontario are served by lawyers who meet high standards of learning and competence.

In the late 1990s, the Law Society established two Competence Task Forces. The First Competence Task Force established a working definition of the competent lawyer[3] which is now reflected in the definition of a “competent lawyer” in Rule 3.1 of the Model Code of Professional Conduct and across Canada. As defined in the Model Code, a “competent lawyer” is “a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement”. The Model Code provides further particulars in its definition.

The Report of the Second Competence Task Force[4] proposed implementation of what it described as the “competence blueprint” which included focus on both pre-call and post-call learning. As the report said:

The post-call efforts of the profession to maintain and enhance its competence span a broad range of approaches, but virtually all of them engage education, whether it be through experiential learning, continuing legal education, self-study, or the pursuit of advice and mentoring. Pre-call learning is the foundation upon which a career long commitment to learning is constructed.

The bar admission course

Between the reports of the First and Second Competence Task Force, Convocation received and considered the Bar Admission Reform Report[5] which was expressly grounded in the Competence Mandate and the work of the Competence Task Force.

The Bar Admission Reform Report noted that the Bar Admission Course began in 1959 and that its then current form was mandated by Convocation in 1988 approving the “Spence Report”. Following graduation from law school, prospective lawyers undertook a three phase pre-call training program. The first phase was a one-month workshop-based practice skills program addressing professional responsibility and practice management, interviewing, legal research, legal writing and drafting, alternative dispute resolution and advocacy. The second phase was the articling year. The third phase was a three and one-half month seminar program focused on substantive and procedural law, lawyering skills, and how to complete transactions with written examinations. Attendance was originally mandatory but was merely “strongly encouraged” by 1998.

On delivery of the Bar Admission Reform Report, Convocation reaffirmed that there should continue to be “an effective and comprehensive bar admission education and training program” and that articling should be maintained.

To summarize, lawyers called to the bar in Ontario in the 1990s had three years of law school, twelve months of articling and four and one-half months of substantive, procedural and skills training for a total of over 16 months of post-law school legal training.

In late 2003, Convocation received the Report of the Task Force on the Continuum of Legal Education[6] which recommended continuation of articling for ten months but major changes to the bar admission program. Rather than substantive, procedural and skills training and assessment, a five week skills and professional responsibility program and assessment and two licencing examinations were approved. These licensing examinations continue as the Barrister and the Solicitor Examinations. In effect, the choice was made to test for substantive and procedural competence rather that to teach in those areas presumably on the basis either than law schools provided sufficient practical education and/or that students could learn enough on their own.

In 2007, Convocation established a Licensing and Accreditation Task Force which reported in January of 2008. In its consultation report[7], it was noted that the five week Skills and Professional Responsibility Program was reduced to a four week program in 2007 as a result of perceived repetitiveness within the learning modules. Ultimately, Convocation accepted the Task Force recommendation[8] that the Skills and Professional Responsibility Program be replaced with a pre-call five day pre-call professional responsibility and practice requirement integrated with articling and 24 hour of continuing professional development in the first two years after being called to the bar.

Since 2008, the five day professional responsibility and practice requirement has fallen away. Candidates are now required to pass the two licensing examinations and either to article or attend the LPP. The pre-call training in Ontario has been reduced from four and one-half months to five weeks to four weeks to five days and is now eliminated. The Barristers and the Solicitors Examinations remain.

To summarize, lawyers now called to the bar in Ontario have three years of law school, ten months of articling or the LPP and must pass the Barristers and the Solicitors Examinations.

The articling debate

There have long been debates “on the value of articling as a component of professional legal education and recommendations for change”[9]. As long ago as 1972, abolishing articling was proposed[10]. In 2008, the Licensing and Accreditation Task Force consulted the profession on this and other topics. As the Task Force reported in its Final Report:

Respondents overwhelmingly rejected the abolition of articling. They emphasized that a competent profession requires practical training before call to the bar. Articling should not be characterized as a barrier, but rather as a core component of the licensing process.

The nature of the articling debate changed by the late 2000s. Previously, the debate was mostly about the utility and variability of the articling experience. What caused the change was that the number of licensing candidates in Ontario has increased significantly over the last 15 years or so while the number of articling positions has not kept pace.

The substantial increase in the number licensing candidates

In 1972, the annual capacity of the Ontario law schools was in the range of 1,000 to 1,100 students[11]. By 2000, the number of first year law students admitted to Ontario law schools was essentially unchanged at 1,103 students[12]. For more than 25 years, the capacity of the principal gateway to the legal profession in Ontario was unchanged. That this was so is somewhat surprising given the increased population of Ontario and the resulting increase in supply and demand. Something had to give and it did. At the same time, something else happened, namely increased immigration and the acceptance that qualified immigrants had to be treated fairly in professional licensing[13].

From 2000 to 2010, the annual capacity of Ontario law schools increased by over 300 to in excess of 1,400 students. By 2015, the annual law school capacity was nearly 1,550 students[14]. After decades of essentially no change, the annual capacity of the Ontario law schools has increased by 40% over the last fifteen years.

During the same fifteen year period, a new source of licensing applicants opened up. In 2000, only approximately 100 Ontario licensing applicants came through the National Committee on Accreditation (NCA) having attended law school outside of Canada. By 2010, there were nearly 400 NCA candidates. There are now some 650 NCA candidates annually of whom approximately half are Canadians who obtained their law degrees outside of Canada.

Putting this information together, the last 15 years has seen a total increase from approximately 1,000 candidates annually to approximately 2,200 annually[15]. Approximately 45% of this increase is from increased Ontario law school capacity, approximately 25% is from foreign-trained Canadians and approximately 25% is from foreign-trained immigrants. That some 70% of this significant increase is from Canadians shows a significant demand for law school education that was not previously met. This is consistent with pent-up demand after the unchanged Ontario law school capacity over the prior 25 years.

The slower increase in the number of articling positions and the LPP response

Unfortunately, the increased numbers of candidates seeking articles in the late 2000s coincided with the 2008 economic crisis and its aftermath. During this period, larger firms cut back the number of articling positions. This didn’t help.

In any event, while the number of articling positions has substantially increased (to approximately 1,950 by 2016), there has been a gap for some time between the number of licensing candidates and the number of articling positions. It is also the case that, likely given the intense competition for articling positions, some of the increased number of articling positions are less attractive and even exploitative positions, including poorly or unpaid positions.

It was this gap between the supply of and demand for articling positions that was the impetus for the 2012 Articling Task Force which recommended the establishment of the Law Practice Program (LPP) as an alternative to articling. This recommendation was one of the three available responses. The first was to do nothing and accept that the number of articling positions practically limited the number of new lawyers each year. The second was to add a new pathway to licensing, namely the LPP. The third (which was the minority position) was to abolish articling in favour of a limited version of the LPP.

How to think about all of this

It is clear that the establishment of a second licensing pathway (the LPP) didn’t end the never-ending licensing debates. The LPP was only established as a pilot project. Perhaps inevitably when there was a prospect of ending the LPP, there was substantial opposition with a resulting Law Society decision to deliberate more generally on approaches to licensing.

While, as of the writing of this column, there are no proposals on the table, it is reasonably predictable that some or all of essentially the same alternatives will yet again be considered. One option is to continue articling and the LPP with or without reform. Another option is to eliminate the LPP in favour of articling as the only pathway. A third option is to eliminate articling in favour of the LPP in current or different form. A fourth option is to eliminate both articling and the LPP.

The point of this column is to reflect on what is, or should be, in issue in considering the various alternatives.

The competence mandate and fairness to candidates

There are, broadly speaking, two proper perspectives from which to consider these issues. The first perspective is that of the clients to be served by the lawyers that we license. This is the point of the competence mandate described at the outset. Ensuring that those licensed to practice law are competent to practice law is fundamental to professional regulation. Losing track of the competence mandate is unacceptable even if tempting.

The second perspective is that of the licensing candidates[16]. There are two aspects to this perspective. The first is that of candidates generally. For example, all candidates naturally prefer not to pay for licensing requirements especially after enduring expensive law school fees. The second is that there are differences between licensing candidates i.e. the second perspective is heterogeneous. These candidates’ perspective may be thought of as being about fairness; fairness to candidates generally, fairness as between candidates and fairness to specific candidates.

Like all hard problems, proper policy decision-making here isn’t about choosing between the two perspectives. Rather, both perspectives must be considered. However, it is important to recognize generally speaking that the point of licensing is to ensure competence and that the licensing requirement inherently places burdens on prospective licensees. How much burden is properly borne and how that burden should be shared are important questions.

The competence mandate

It seems to me that thinking clearly about the competence mandate requires reflection on the evolution of the licensing process over the last two decades. This evolution is essentially from a four and one-half month bar admission course in which substantive and procedural law and lawyering skills were taught and assessed to the current Barrister and Solicitor Examinations i.e. from teaching to just testing. While it is likely true that law schools generally place greater emphasis on experiential education than they did two decades ago, I’m not aware of good evidence that law schools are now training lawyers to practice law. Indeed, law schools disclaim this responsibility and mission.

For this reason, it seems to me that those arguing for an end to, or substantial reduction of, transitional training (whether through articling or the LPP) should face a heavy burden to demonstrate that proposed changes meet the competence mandate. Said another way, I don’t think it acceptable to have perceived fairness to candidates trump the competence mandate. Indeed, allowing incompetent candidates to enter practice is itself unfair to them.

It would be a terrible irony if the focus on the competence mandate in the 1990s was the precursor to a series of “reforms” the net result of which was to end all transitional training. First ending the bar admission program and then ending articling/the LPP is surely not consistent with the competence mandate.

As between articling and the LPP, it must be acknowledged that neither is perfect. Some articles do not provide proper training. The competence mandate requires that these bad articles not be permitted. We must accept that some articles are better than other articles with the result that the gain from articling is uneven. In contrast, the LPP provides its candidates with a generally consistent experience. The LPP provides both simulated experiences as well as work placements for real life experiences. Unfortunately, we cannot say whether the LPP is generally better at ensuring competence than most articles or whether the reverse is true.

So far as the competence mandate is concerned, there does not appear to be a cogent basis to say that either most articles or the LPP do not provide candidates with sufficient transitional training.

The fairness requirement

The fairness requirement is tricky. For example, fairness underlies the decision to adopt the LPP as a second pathway. It would be unfair to qualified candidates who cannot find articles (because the market doesn’t generate sufficient articling positions) to say that they cannot be licensed. Once licensed, finding work is a different matter. Yet adopting the LPP created a perceived unfairness by creating two classes of candidates. Of course, the alternative of abolishing articling to ensure one common pathway would impose a burden on those who would have articled by taking articling salaries from them and by increasing the total cost of the LPP which is borne by all candidates.

It seems to me that the fairness requirement must be addressed by recognizing that perfect fairness is impossible and that eliminating burdens for some will often impose burdens on others and by focusing on how to practically mitigate unfair burdens. In that spirit, some of the current advantages (the loss of which would be a burden) and the current burdens appear to me to be as follows:

  • articles
    • can provide:
      • valuable real world experience
      • increased prospects for post-call employment
      • a salary, which is particularly important given current law school tuition
    • are less accessible:
      • to students who go to law school in other countries and aren’t part of the “system” during law school
      • to new Canadians who may lack language skills and social capital
      • to racialized candidates
    • can be exploitive in terms of income, experience and sexual harassment
  • the LPP
    • can provide
      • good training, including simulated training
      • work placements which are generally, but not always, paid and which provide real world experience and increased prospects for post-call employment
      • introduction to Canadian culture and society for new Canadians who are not yet fully competitive in the legal labour market
    • does not generate revenue, unlike articles, and accordingly does not pay for itself and does not provide salaries for its candidates

The bottom line

I suspect that the great articling debate that has now spanned nearly five decades has not reached resolution because there is no good answer. Articling is imperfect. There are no clearly better alternatives. Our differing perspectives lead us to different conclusions because there aren’t clear answers.

If this is so, it follows that it would be better if we stopped trying to find big answers and instead started to work toward smaller pragmatic ways of reducing burdens and unfairness.

In doing so, I suggest that we should accept two primacies. The first is our competence mandate. Any proposed change must bear the burden of showing that the clients of newly called lawyers will be competently served. The second is that unfairness must be thoughtfully and effectively addressed. In this regard, we must distinguish between dealing with unfairness that must be addressed (such as exploitative articles and Human Rights Code violations for example) and throwing babies out with bathwater in well-motivated attempts to ensure that everyone is treated in exactly the same way.

_____________________

tỷ lệ cá cược bóng đá trực tuyến [1] Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1791-1997, pp. 259-260. It was the vice-dean of Osgoode Hall who proposed the establishment of the bar admission course. According to Christopher Moore, “[he] suggested that a post-LLB training program could even out the inequities that plagued the articling process”.

[2] Special Committee on Legal Education Report (aka the MacKinnon Report), 1972

[3] First Competence Task Force – Final Report, November 1997

[4] Second Competence Task Force – Final Report, April 1999

[5] Bar Admission Reform Report, June 1998

[6] Task Force on the Continuum of Legal Education Report, October 2003

[7] Licensing and Accreditation Task Force Consultation Report, January 2008

[8] Licensing and Accreditation Task Force Final Report, September 2008

[9] Articling Reform Sub-Committee Report, October 1990

[10] MacKinnon Report

[11] MacKinnon Report, p. 10

[12] Ontario Universities’ Application Centre www.ouac.on.ca/statistics/law-school-application-statistics/

[13] Fair Access to Regulated Professions Act, 2006, SO 2006, c 31. Section 6 provides that “A regulated profession has a duty to provide registration practices that are transparent, objective, impartial and fair”.

[14] To 2000, most of the increase was from the University of Ottawa (216 students) and Windsor (55 students). From 200 to 2005, most of the increase was from the new law school at Lakehead (60 students), Windsor (43 students) and Queens (25 students). Ontario Universities’ Application Centre supra.

[15] This analysis excludes licensing candidates who attended law schools in other Canadian provinces.

[16] Technically, there is a third (and problematic) perspective which is that of existing lawyers whose self-interest is in the limitation of new licensees/minimizing competition. The “issue of numbers” has always been expressly or implicitly part of the licensing debates.

Comments

  1. Robert G. Harvie, Q.C.

    Thanks, Malcolm, for a well-articulated exposition of the competing questions regarding the training of lawyers, specifically, as concerns the practical application of legal knowledge acquired in Law School.

    My own opinion is that Universities have been under increasing pressure to bridge a gap resulting from the failure of many principals to provide the guidance and mentorship which was thought to be inherent in the articling process.

    The increasing movement towards “commoditizing” the legal profession, has resulted in a somewhat unhealthy response to articling from the perspective of a somewhat short-term “cost/benefit” analysis – namely, what’s the cost of even taking a student, versus the benefit received… and as mobility has expanded, the uncertainty of that benefit has grown. At the same time, if a firm does take on a student, again, the business model becomes, “what is the return on investment” – such that students are often utilized as cheap labor as opposed to being tutored in a professional manner befitting our professional obligation which is assuring the public interest and our own collective reputation, and not always about billing for their time.

  2. Thanks for writing such a thoughtful article. I’m wondering why there isn’t more of a debate on Barristers and the Solicitors Examinations. If law school teach and test knowledge of substantive and procedural law, and these programs are accredited by the law society, what purpose does the Exams serve? Presumably if there are gaps in what is required to be taught and tests in the law school programs, the law societies could close these at any time.

    I can definitely see the case though for having some vehicle for teaching practical lawyering skills (which are not taught by law schools in any meaningful way), whether through articling, LPP, or some other method.

  3. The change in the business model of the law office is the key reason there are fewer articling positions. Law clerks, paralegals and computer programs have replaced much of what articling students could do in the 1950s. Now small and medium firms are asked to train students, who cannot produce much of value, and also pay them.

    The Americans system does not produce lawyers inferior to Ontario. They are considering reducing law school to two years – even though they do not require articling. Obama supports the two year law school. Remember: In first year they frightened us to death; in second year they worked us to death, and in third year they bored us to death.

    Then make articling an unpaid year. Students would not have to pay the $30,000 in tuition and would benefit. Law firms would get some value in exchange for training. Articling positions would abound.

  4. Mr. Weir’s commented that “[t]hen make articling an unpaid year. … Law firms would get some value in exchange for training. Articling positions would abound.” This suggestion coupled with the above assertion that “[l]aw clerks, paralegals and computer programs have replaced much of what articling students could do” brings about two questions to my mind: what would the unpaid articling students be doing? And, whatever the answer is to the first question, then why aren’t they currently trained in that or those task(s) during articling – which would suggest that the purpose of articling needs to be addressed or articling needs to be done away with and practical training made part of the curriculum if law firms are not or will not provide appropriate training.

    Also, with such questions posed who or what institutions (law firms, law schools, law societies) should be or is responsible to ensure that each call to the bar is practice-ready?

  5. Back in 1974, when we had the six-month bar admission course, Darry Miller and I may made a submission to the Benchers suggesting that the bar admission course be made part of second and third year law school. Marty Friedland, on behalf of the Law Deans, wrote a scathing rebuttal which began with, “Are we to be saddled with…” I can’t remember the rest verbatim, but basically law schools were to teach theory and the Law Society was responsible for teaching the practical side— and never the twain should meet. That was the original agreement back in 1949 or so when the law professors left the Law Society run Osgood Hall and formed the independent University of Toronto law school.

    The bar admission course in 1974 did have some excellent material. The leaders of the bar were the course heads who drafted the material. The seminar leaders were also leaders in the profession. The problem was, that it was an extra year so that Ontario was demanding basically five years while the American system took only three. Of course, eventually the law society was forced to end the best part, which was the bar admission course and let law schools remain totally theoretical. So the idea that law schools should teach the practical side has been rejected. That would require having experienced lawyers appointed to full-time positions on the law school staff to develop curriculum. That is never going to happen in Ontario.

    So yes, the articling program has been much criticized because of the variable experience. Some students will get a well-rounded exposure, some will probably be little more than gofers. But the majority of the members of the Law Society are committed to articling.

    My preference would be to reinstitute the bar admission course run by the Law Society as before in place of third year law school and before articling; but that was already proposed and soundly rejected. The Law Dean’s are not likely to have changed their opinion in only 44 years. Thus the best compromise is shorten law school to two years. Don’t wait until10 years after the Yanks do it.

    The best I can understand of its system, the UK has a 3 year undergraduate law degree, then a practical course combined with 2 years articling—5 years. Ours is 3 undergrad, 3 law school, 1 year art =7yrs. Are Ontario lawyers really so much better than UK lawyers?

  6. Malcolm Mercer

    A couple of responses to Jan Weir’s first comment.

    The first is that the number of articling positions hasn’t declined in Ontario but rather has increased significantly with demand – just not enough to meet the demand. While it is an attractive hypothesis that new ways of providing legal services make articling cost-ineffective, I don’t think that there is evidence for that actually being the case. The problem area for articles is in small firms and sole practices. I suspect that the problem there is not less costly substitutes but rather legal practices that are too small/limited to support another practitioner.

    The second is that the US exam-based alternative has its problems too. The US exams test substantive law. The main problem is that about one-third of US exam takers fail the exams. The implicit approach seems to be that the top two-thirds are “good enough” to figure how to practice. That seems to me to be a pretty high human cost after three years of law school. This winnowing has inherent diversity costs. There is also the cost of cram-schools to factor in. Fitting the theme of this column, there are lots of critics of the US approach too. There are lots of ways to approach licensing. None are perfect. The debate never ends.

  7. Interesting post, Malcolm. As is often the case when Ontario’s lawyers are debating some aspect of professional practice (I find), the post does not address the issue in the context of what is and is not working in terms of Articling and pre-call education across the country. For example, the Prairie provinces are currently redeveloping the CPLED program first introduced some 10ish years ago. Their experience surely could inform the ever continuing debate in Ontario, as might the experience in BC or elsewhere in Canada.

  8. Hi Karen. Fair comment. In this case, my goal was to trace the history in Ontario for context. The Ontario history is unique both in the abandonment of the bar admission program and the adoption of the LPP as an alternative to articling. As is the case for all of us, I can best contribute what I know about best. Sounds like you have a contribution to make!

  9. Bradley Wright

    Interesting thoughts on the current state of affairs and on some of what could be done.

    With respect, there is a perspective missing and that is what is the optimum (or as close to optimum as humans can get) number of lawyers per capita needed by the public of Ontario so as to ensure competition, reduce churning, and deliver only necessary and cost-effective legal services?

    For most of our recent history, calls increased over time fairly in line with population growth. Then calls exploded far in excess of population growth. We have been calling lawyers to the bar for many years now at a rate that is somewhere between 5 and 10 times population growth. If we keep that up, someday every non-lawyer will have his or her own personal lawyer to feed and water for the lawyer’s entire career and retirement.

    In legal world terms, the worst thing that can befall a society is too few lawyers per capita (for example, human rights suppressor China which has 1 lawyer per 50,000 people). But the second worst thing is far too many lawyers per capita (for example, the US which has 1 lawyer per 289 people). You cannot make a living on a client base of 289 men, women and children unless, of course, you evolve a legal system built on endless litigation and churning of legal work, which is horrifically costly to a society’s social fabric and wallet.

    How did this explosion happen in Ontario? First, we could not learn from American blunders. Second, we left the decision as to the number of lawyers per capita largely in the hands of the comprehensive universities that have law schools (and medical schools). I was advised by someone in the know that, when the lamentable NDP government of the mid-90s cut medical school enrollment (what?!), the central admin offices of the universities dictated to the law schools to stop failing law students in order to make up for the tuition and government grant money lost by the medical schools. I was further advised that an effort was made to maintain law school standards but the Riot Act was read to them.

    Not that I lived in a shoebox in the middle of the road in Yorkshire when I was younger, but when my Dad when to law school, nearly one third of the class flunked out, mostly at Christmas in first year (which to this day remains the most humane stage at which to weed out those who are not suited to law (though they may be wonderfully suited to whatever other career they switch to)). When I was at law school on either side of 1980, close to a fifth (maybe a quarter) of my classmates did not graduate with me. For years now, virtually everybody passes, even if they have to re-write some exams. This change has nothing to do with the public interest, but everything to do with the financial interest of the universities.

    Then, having hugely increased the flow of students arriving at the Bar Ad Course by no longer failing anyone, some law schools began to increase their first year cohorts. Ottawa U’s law school more than doubled in size, and it was already the second largest in Ontario. We added a law school at Lakehead, a move I supported because the Province needed a law school in the beautiful, but under-served, North. In the last 10 years, we have added the equivalent of at least three law schools, four or even five if we add the tsunami of foreign-trained lawyers flowing into Ontario, many of whom are Canadians who could not get into the 14 or so Canadian law schools and who instead go abroad, get a law degree, return to Ontario demanding to be called, and they are because virtually no one fails the bar admission exams in the end.

    Leicester in the UK takes Canadian students who have B averages and no LSAT. A B is now a below-average mark. When I was in university, only about 10% of the marks were As. Now 38% of them are As. I think the younger generation is every bit as smart as my generation; I do not think they are four times as smart. Factor in B+ marks to take you to 50% and that makes a B a below average mark. Does it make sense to call to the bar students who are below average, have no demonstrated affinity for the kind of the thinking that is useful in a law career (which is what the LSAT helps to do), who pass their law school courses because virtually no one fails (keep those tuition payments flowing), and pass our challenge exams also because virtually no one fails?

    The law schools have never bothered in a significant way to teach practice (and they never will given that few professors have ever practiced in small firms where 75% of legal services are delivered from). The bar admission course and articling did that. At the time of the debate on the BAC’s future, benchers were presented with reams of information including the comments of respected US observers to the effect that “Thanks to the BAC and articling, Ontario’s pre-call preparation is the best in the World.” Naturally, we killed the BAC. Later, we shortened articling, making it harder for small firms to justify the spare office sitting empty for two months every year. Don’t blame me. I voted to keep the BAC and the full year articling term. We have been paying for these mistakes ever since.

    There are not enough articling positions, not because of any nefarious gate-keeping by the profession, but because the explosion of graduates has absolutely swamped the bar. We instituted the LPP as a new path for students who could not, for the simple reason that there were not enough jobs to absorb the tsunami, get articles. By setting up the LPP, we let the universities off the hook for their irresponsible revenue grabbing, the government off the hook for its negligent misallocation of scarce education resources, and even the benchers off the hook for taking the flak of denying anyone, even those who bypassed our standards, entry. I argued against that too. The students who could not get articling jobs because there was insufficient work to employ them now complete the LPP and discover, surprise, surprise, that there are still no jobs for them. I also argued that Ryerson, who was awarded the contract to set up the English LPP, would, in just a few years, return seeking a charter for a full law school. They have now done that. Even though we have about 1,000 students a year who cannot get jobs, Convocation recently approved Ryerson’s application for yet another law school. Hardly any bencher spoke against it; although I did. One does not know whether to laugh or cry.

    Far too many lawyers per capita is very bad for the public. While it does not seem to affect the solicitor bar quite as much, if you cut the number of clients per capita for barristers, then the barristers have to make twice as much money from the clients to make the same living as before. This is what leads to the churning and dragging out, which comes at gargantuan expense to the public and government including such hard to measure but very real costs as stress-related health issues and productivity loss. While it may seem counter-intuitive, it is actually no accident that the number of self-represented litigants has risen in lock-step with the precipitous rise in the number of lawyers per capita.

    Incidentally, as lawyer are spewed out like dandelion seeds, jurisdictions such as the UK are looking at ways to reduce the need for lawyers. In the UK, the government is well on the way to introducing a meat chart for personal injury claims such as whiplash. It is believed over there that that will result in major job losses in that bar.

    It seems to me that no one is in charge, no one cares, we cannot learn from the blunders in other jurisdictions, we have no sensible plan, it’s is all about money and who cares what happens downstream.

    But those are topics for another day. As it is, carpel tunnel beckons.

  10. Bradley makes an interesting point: a lot of this debate is fuelled by a progressive move to a more free market in legal services, where the profession removes some barriers to entry to allow more open competition. At what point do we allow prospective students and candidates to fail, accepting this is part of the system we’ve implicitly accepted? It seems as though we’re just kicking the can further down the road until we’ve hit the last stop and barrier: the job market. Is this really a debate about quality of legal services, or is it a debate about access to and competition in the legal market?

  11. Bernard Sandler

    I’ve long hoped that law schools would take a page out of medical school training and adopt a teaching hospital model. Law schools could run expanded clinic programs that all students must take part in. In a world of increasing self-representation and inaccessibility of legal advice to so many potential clients it would seem like an obvious solution.

    Students would be assessed on practical skills and intern much like medical students. This bedrock of the medical profession could significantly enhance the confidence of clients that students have had solid experience practicing within a monitored institution.

    You could even have specializations within the clinic environment and run a matching program whereby students did rounds under the auspices of experts in particular fields. This would broaden the experience available and provide a place where lawyers eager to make use of young talent but lacking the time to administer an articling program could access a pool of students within a program.

  12. Bernard, you make a good point. Could you imagine if medical schools had the same attitude as many law schools? That medical schools should not be teaching the “practice” of medicine, and instead should focus on academics and theory? Medical education would be a disaster.

    Law schools need to stop pretending that they are not, in fact, training people to become lawyers. they are. Or, at least, they should be.

  13. Competence plus character should be the only requirements. Not merely credentials. And the LSO should return to taking more of a role in teaching the practical aspects of law. Looking at a few US states, the annual fees for lawyers are at most a few hundred per year. For what the LSO charges lawyers, shouldn’t they spend some of that money taking additional responsibility for teaching bar admission, as they once did as noted by Jan Weir?

    I’ve never understood why an exceptional CEGEP student can go to McGill law but for the rest of Canada it’s now expected to get a full degree first. The UK model of basic academic training plus extended practical learning might be better, but no-one will agree to such changes now, everyone wants the prestige of a JD. What should be required to become a lawyer is competence plus character. Not an arbitrary 7 years, of which the first 4 has nothing whatsoever to do with the study or practice of law. Some US states, like California and New York, even allow for becoming a lawyer with no or limited law school study, with years spent studying under supervision of a lawyer – articling.

    Not that I’m advising that, but as a matter of access to justice, law school and learning about the law used to be much more affordable; and law societies supporting ever-increasing credentials, rather than simply competence, acts to further limit access to the profession (both as students, and indirectly because graduates have to try and recoup their time and money spent).

    As an aside about access to justice, the LSBC provides its bar admission materials for free to the public on the website, with suitable warnings. Why doesn’t the LSO?

    Re law schools versus law society as teachers, there’s a problem in that law schools are expected to teach both the academic, theoretical, and applied, practical, aspects of law. While in other fields there are overlap, someone can study medicine or biology, biochemistry, microbiology, etc. Someone can study pure sciences or applied sciences, engineering. Theology as an academic subject or divinity to become a minister. Etc. Even when there’s overlap, there are different programs and focuses. But law has one basic program for everything, and trying to serve both purposes serves neither entirely well. Someone who wants to study biology doesn’t have to qualify to study medicine and get admitted to such a program. But in law they do (neither criminology nor paralegal studies are substitutes).

  14. Brad argues that there are too many new lawyers. I’ve no idea on what factual basis that is or could be asserted or what the right number is. What is clear from the historical record is that this claim have been made for just as long as the articling debate has gone on. A sceptic (or perhaps a realist) might think that many existing practitioners will always tend to see increased competition as a bad thing.

    As for population growth, the population of Ontario in 1971 was 7,703,105 according to the 1971 census. The population in 2016 was 13,448,494 according to the 2016 census. This is an increase of 74.6%.

    In the early 1970s, the Ontario law schools were admitting about 1,000 students annually. In 2016, 1,549 students were admitted according to the Ontario Universities’ Application Centre. The number of first year students admitted to Ontario law schools per capita has declined, not increased, over the last 45 years. Of course, the number of licensing applicants from foreign law schools has increased but the no-growth comparator would be 1,750 based on population growth.

    In any event, economists suggest that the demand for legal services is tied to the GDP growth rather than population growth with increased economic complexity requiring more legal services. The proportionate increase in GDP since 1971 exceeds population growth. The growth in large law firms over this period reflects this fact and makes meaningful comparisons over longer periods very challenging. But the benchmark is likely materially above 1,750.

    For a discussion of numbers see /daa/2017/03/17/too-many-new-lawyers-build-a-wall

  15. Bradley Wright

    The population of Ontario in 2000 was 11,683,290. The number of calls that year was 1,280. The population of Ontario in 2016 was 13,976.300. The number of calls that year was 2,200. The growth in population was 19%. The growth in calls was 72%. The numbers are actually worse because the increase of calls over population growth began earlier than 2000. Nor does the number of calls take into account net post-call transfers from other jurisdictions.

    In past eras, some people would argue there were too many lawyers. At the start of my career in 1983, the worry was about the handful of students who had not found articles. A few phone calls would be made and articles would be found. Fast forward to today. Hundred upon hundreds of students cannot find articles no matter how many phone calls are made. Instead, over 400 of them must go through just the English LPP. Another cohort goes through the French LPP. Having not found articling jobs because there isn’t enough work to spread around, these 400-500, and some of those who did article but were not hired back, get called and, guess what ? Still no jobs. So, desperate to start paying the 90K student loan, they hang out a shingle only to learn in panic how poorly law school prepared them for private practice, all the while lacking ready access to crucially important mentorship. Some of them get seduced by title insurers (motto: we cover you until we don’t*) into thinking they can handle things they are not prepared for.

    *title insurers trumpet that they protect the premium paying private mortgage lender against fraud. Maybe they do, but not if the lender follows centuries old, extremely common (as in 99.9% common), commercially normative and acceptable, tried and true, Law Society sanctioned and encouraged, best practice methods of transferring funds from lawyer trust account to lawyer trust account. Then you’re not covered. Or so says one insurer. Fortunately, the Superior Court and Court of Appeal say otherwise, but I understand the insurer is appealing to the SCC. See Nodell v Stewart Title.

    So yes, there are too many calls, caused not by the profession’s nefarious gate-keeping (which does not exist), but by the revenue hunger of the universities and the slumber of the Government. We have evolved a society that rations doctors but tsunamis out lawyers. Both of these two strong and lamentable trends badly harm the fabric of our society.

    The answers in support of doing nothing about figuring out a sensible number of lawyers per capita are ‘ we are powerless as the universities set the numbers’, ‘let the market weed out the poor ones’ (at what cost to the public?) and ‘society is more complex so we need more lawyers’ (how about reducing the complexity? a more streamlined litigation system, a nearly automatic 50/50 custody and access regime as in Europe, less Sarbanes/Oxley, Dodd/Frank style of endless and over-regulation and bureaucracy, less coddling of every perceived slight (which comes at the sad expense of trivializing legitimate complaints), and so on.

    Have a great long weekend to anyone still reading.

  16. Malcolm Mercer

    Choosing the year 2000 as a starting point is interesting. There had been no significant increase in the number of first year law school positions in Ontario for forty years prior to 2000 while the population of Ontario increased significantly. There was a long decline in the number of new lawyers per capita over forty years.

    There was then an increase in the number of admitted to Ontario law schools. Viewed against 2000, the increase per capita is significant. But viewed over the longer term, there has been a decrease over the long run.

    Looking at short periods of time can be misleading.

  17. Malcolm Mercer

    Oops. 2000 was the low point per capita over the prior approximately thirty, not forty years.

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