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Hispanic Ontario Lawyers Association
March 23, 2012
VIA E-Mail: [email protected]
Ms. Sophia Sperdakos, Policy Counsel
Policy Secretariat
Law Society of Upper Canada
130 Queen St. West
Toronto, ON M5H 2N6
Re:
Proposed Changes to the Articling Requirement:
Implications For Equality-seeking Groups.
Introduction to “HOLA”
The Hispanic Ontario Lawyers Association (“HOLA”) appreciates this opportunity to
comment on the Law Society of Upper Canada’s consultation report dated December 9,
2011 (the “Consultation Report”) regarding potential changes to the articling requirement.
HOLA is a not-for-profit organization comprised of Hispanic lawyers and law students
seeking to form a stronger network. Our objectives include to increase the number of
Hispanics lawyers; to advance the standing of Hispanic lawyers in the community; and to
promote cooperation and continuous professional development among Hispanic lawyers.
Articling Placement Shortage
Everyone seems to agree: some form of transitional training is essential but the articling
requirement should not be an unfair barrier to licensing. In this regard, the Law Society is
concerned that it cannot demonstrate, through objective measures — systemic
assessments or benchmarks — that articling is accomplishing its goals, and so the articling
requirement is harder to justify in the face of placement shortages. HOLA does not think
that the appropriate response, to these circumstances, is to establish an alternative to the
articling requirement (nor, of course, to abolish articling).
HOLA is in favour of both Option 1 and 2. Prospective law students should be advised that
a law degree does not guarantee a licence, among other reasons because an articling
position is not guaranteed, with data to explain the degree of risk.1 Further, HOLA
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step.
The Consultation Report notes (at p. 12) that the Law Society of Scotland has taken this
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welcomes the introduction of reasonable (not burdensome) Quality Assurance
Improvements. We believe that the results would prove that the articling experience plays
a valuable function and is an essential component of responsible entry.2
In addition to Options 1 and 2, HOLA recommends that all necessary temporary measures
be taken (including a reasonable levy on the profession to partially subsidize articling
placements) to eliminate the current placement shortage. Current unplaced candidates
should not be left out in the cold. They are already past the academic system, after having
invested 3+ years and significant sums of money. The current placement shortage must
be confronted and eliminated.3
HOLA does not recommend creating a systemic and permanent alternative to articling.
Solving the current placement shortages by allowing law schools to provide both the LL.B.
and “transitional training” just hides the problem (namely, too many articling candidates for
the remunerative work out there) and compounds it year after year.
The current shortage should be treated as a (hopefully) temporary problem for which
temporary solutions are appropriate. No doubt, this requires a dialogue with Ontario’s law
schools. That conversation must take place. It is naive to think that many students incur
significant debt to specialize in pro bono work.
It is not in the public interest that there be “too many lawyers”. Society needs lawyers to
be competent, experienced and vibrant, not only for the personal representation they
provide but also because most social and economic activity happens in the shadow of the
law. Indeed, it is the underprivileged who need the protective shadow of the law most.
Lawyers taking a test case, for instance, but also even those bringing a run-of-the-mill
Charter motion, serve society at large and not just their clients. Without vibrant, competent
and experienced lawyers, the law casts no shadow.
As an example, Charter rights are tested in police investigation rooms every day. When
the system works as intended, “proper police procedure” is followed even when a lawyer
is not watching. The reality is that, at least to some extent, and certainly after a long
enough period of time, Charter rights are only as strong as the likelihood that a lawyer will
recommend (and bring) that motion, instead of a guilty plea, all things considered.
Indeed, the process of particular persons’ Charter rights being tested — and being either
2
The fear that the administrative burden that quality controls would impose on articling
firms/principals would decrease demand for articling students can be addressed through
subsidization of placements.
3
Those who would enter law school after the Law Society provides the warning
recommended at Option 1 must be prepared for a different reception.
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burnished or dulled, both outside and inside courtrooms, every day — results in, i.e.,
becomes, the Charter we all live under.
Therefore, what is in the public interest is that Legal Aid be appropriately funded, not that
there be always increasingly larger crops of new lawyers willing to take a certificate.
The alternative to “killing all the lawyers” is to have “too many” lawyers. Continuing the
criminal law example: to make it so that they must attend four different courthouses a day,
not two or three, just to keep the lights on.
Keeping the Shortage in Perspective
Temporary measures are appropriate because the current system is not broken. The
shortage is not insurmountable. Approximately 100 individuals actively seeking articles
from the 2010 Licensing Process remained unplaced as at June, 2011.4 The practising bar
can create these positions through partial subsidization.
Indeed, quite likely, creating PLTCs would require more stakeholder time and money.
A 9% Grown Gap, Part of Which Is To Be Expected
The Consultation Report notes that whereas the size of the practising bar has increased
by 33% over the last ten years, the number of articling positions has increased by 24%
(Appendix 1). This 9% growth gap is not a “crisis”. At least some gap is to be expected
during times when membership increases very quickly, because no percentage of new
members can be anyone’s articling principal immediately. New lawyers must achieve a
certain level of seniority before being able to be articling principals themselves.
The Causes of the Shortage5
Articling shortages have been caused by factors that could be termed “extrinsic”, both to
the practising legal market and to the fundamental issues of whether traditional articles are
4
By June, 2011, the total number of unplaced candidates from the 2010 Licensing
Process had decreased from 214 of 1767 (12.1%) to 174 of 1748 (9.95%). Moreover, out of
those 174 candidates, only 91 were actively seeking articles; 63 were not; and the status of 20
was unknown (page 7 of Appendix 5). Although some of those 63 individuals were perhaps
discouraged by the market, and probably at least some of the 20 whose status was unknown were
actively seeking articles, the fact remains that positions must be found for approximately 100
individuals. Therefore, a truer placement rate is 94.7%; a “90%”, or so, placement rate includes
those not actively looking.
5
Solving a problem constructively means not assigning blame or pointing fingers. It is
also true that finding the best solution to a problem requires identifying its causes.
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both effective and fair.
The National Committee on Accreditation (NCA) is receiving more applications from
foreign-trained lawyers, resulting in more articling candidates. Over the last ten years,
NCA accredited articling candidates have increased by 374%. And, over the last ten years,
Ontario law schools have increased enrolment by 15%.
According to the Consultation Report, “In the 2007/08 licensing year there were 93
international candidates registered [in the NCA process, looking for and ready to take an
articling position]. In the 2010/11 licensing year there were 272 international candidates
registered” (page 10). That is an increase of 179 articling candidates (not cumulative) in
three years.
In addition, all six Ontario law schools have increased enrolment over the last ten years
(and there is now a seventh law school). The six law schools together have increased
enrolment by 178 spots, again, not cumulative (page 10).
Assuming that the NCA class of 2007 was the same size as the NCA class of 2001, which
is probably not the case, in the last ten years, increases in NCA accreditations and Ontario
law school enrolment have meant an additional 357 articling candidates (perhaps to be
expected from now on, every year).
Notably, it seems the market has been absorbing most of these additional candidates
throughout this period. It is becoming clearer that the market cannot continue doing so.
However, it cannot be suggested that practising lawyers are maliciously declining to hire
all these additional candidates every year.
Concentration in Large Urban Centres and Mid- to Large Firms
The Consultation Report sets out a concern that, as the majority of placements are in
Metropolitan Toronto and in mid- to large firms, graduates are not getting the opportunity
to observe and be mentored by lawyers practising in diverse geographic locations, in sole
and small firm settings, or with principals from equality-seeking groups who often practise
in such settings. Connected to this is the “greying of the bar” concern.
In HOLA’s view, de-emphasizing traditional articles reduces such valuable opportunities.
PLTCs will not increase them. Perhaps the hope is that PLTCs will provide the best of both
worlds, given the PLTCs’ “law setting placement” requirement. But how beneficial the law
setting placement is, depends, in part, on the length of the placement; and the longer it is,
the longer the law graduate is being forced to work for free (indeed, to pay to work for free).
More on this is said further below.
The Consultation Report indicates that 71% of articling placements are in medium to large
law firms, 10% of which are in firms of 5-10 lawyers (page 5 of Appendix 4). Unfortunately,
historical figures are not provided, but the Consultation Report does state that, “The
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relatively small percentage of placements in the north and overall in firms of one to ten
lawyers is not a new or short term situation“ (underline added) (page 10).
65% of placements are in Metropolitan Toronto, which seems high. But 3,279 out of 8,209
law firms (or just a shade under 40%) are in this area (page 7 of Appendix 4).
Is it the articling requirement that drives candidates to Metropolitan Toronto? Do not a
great number of candidates already live in the area? Could it not be the higher salaries
they can expect to earn, not just during articles but for the rest of their professional career?
Could it not be any number of things? How many graduates would go straight from law
school to new parts of the province, if they were “freed” from the articling requirement?
Actions speak louder than words. The actions of first-year lawyers every year who are not
hired back at the end of articles, but have their licence to look for a job or set up shop
anywhere in the province, yet stay, should be considered.
In any event, ultimately, the concern with the concentration of articling positions in mid- to
large firms in Metropolitan Toronto is overdone, if not misguided. "Transitional training"
should be relevant to the professional experience the articling student is likely to have
immediately after being called to bar, not five or ten years later.
Moreover, getting to article at a large(r) firm provides exposure to practice management
systems, best-in-class software and well thought-out and developed procedures that a sole
practitioner may not have had a need to develop, purchase or set out in writing. Articling
at a large firm may provide exposure to many substantive practice areas and many ways
of “doing business” or “dealing with clients” — not all of which need be perfect to be
educational. It provides many more opportunities (many more concrete environments and
contexts) in which to ask two fundamental questions: “Is this who I want to be(come), and
is this what I want to be doing, in [ten, fifteen, twenty] years?” Finally, articling at a large
firm provides access to a large network of lawyers and articling student colleagues to draw
on during articling and beyond.
In short, although the Consultation Report may have identified the five goals of articling (in
any setting or in the abstract), the usual benefits of articling as we know it are more
numerous. PLTC providers may teach the right skills — but perhaps not as well. A
simulated environment cannot replace exposure to practice. All the classes and speeches
on professional civility, for example, are just an introduction to a concept or an ideal when
tested by another lawyer in a charged situation for the first time, and probably not as
effective at making a lasting impact as watching a principal keep his or her composure.
Similarly, the expectations that a paying client has and the expectations that a paying
principal has, cannot be faked. A paid PLTC provider says that homework is due;
everyone knows that people’s lives will not change if the homework is not done very well
or on time. Students are better off getting the honest, and sometimes tough, feedback of
one lawyer or a group of lawyers who have real clients with real expectations, as well as
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their own real expectations in trying to run a real business, than three times as many
lawyers or professors pretending that it is not them who are being paid by the student and
that the student is their client.
Perhaps more importantly, PLTCs will not hire graduates and take them through the first
years – the most difficult and risky (for themselves and their clients). The Consultation
Report notes that, “medium and large firms continue to hire back a significant percentage
of their articling students” (page 10). According to page 9 at Appendix 4 to the
Consultation Report, 42.9% of articled students in the June, 2010 call were hired back as
first-year associates at the firm they articled. An additional 12.7% were employed
elsewhere. The numbers for the June, 2009 call were similar: 44.3% and 13.3%. The
numbers for the June, 2008 call were even better: 49.4% and 16.3%, meaning that 65.7%
of that year’s call did not (have to) hang up their shingle (unless they really wanted to).
And of course those who did, or had to, had the benefit of working for 10 months for an
experienced lawyer.
The PLTC "without-pay placement" is not a substitute. An important relationship is not built
in three weeks.6 Realistically, a PLTC will not provide the extensive networks that a
traditional articling experience very often provides.7
Law School Grades
The Consultation Report notes that “the group of unplaced individuals includes those with
good law school grades” (page iii; see Appendix 6). Presumably, the suggestion is that the
market may not be merit-based; favouritism and discrimination could be at play.
We simply know too little on this. We do not know, from the Consultation Report, if the
students in question (those “with good law school grades”) feel they have been
discriminated against or even if they are among those who looked for an articling position,
and if so, what they did. All we have are grades. Discrimination cannot be just assumed.
Moreover, although law school grades can be important, we know, intuitively, that
professional success is not determined by grades alone. We should not make drastic
changes because eight people with great marks and another 23 people with good marks
could not find an articling position after one year (even assuming they were all seeking
one; see below). HOLA believes that it is better to have a very special process for those
6
The Consultation Report notes that, in Victoria, Australia, the Leo Cussen Institute’s
professional placement lasts three weeks (pp. 25-26). It is not clear whether the Law Society
envisions that the placement in an Ontario PLTC could be as short as 3 weeks.
7
Of course, not all articling experiences right now are excellent. But what most
candidates are receiving cannot be easily duplicated. And even small Quality Assurance
Improvements should bring many ineffective placements up to standard.
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with a very special case to make.
The “Minority” 4-5% Gap
Members of equality-seeking groups are over-represented in the “unplaced” candidates
group by 4% (page 11 and p. 2 of Appendix 5), or perhaps by 5% if one compares not to
the overall rate but to the Non-self-identified group’s rate. This 4-5% gap includes doublecounting, as some candidates self-identified more than one equality-seeking group (page
5 of Appendix 5).
By June, 2011 the placement rate for Non-self identified candidates had increased to
92.37%; for Self-identified Aboriginal candidates it was higher at 93.33%; for Self-identified
candidates with Disabilities, it was still very high at 90.70%; Self-identified Francophone
candidates had the lowest rate, at 75.27%; for Self-identified Gay/Lesbian/Bisexual/
Transgendered candidates, it was 86.36%; and for Self-identified candidates from
Racialized Communities, it was 85.15%. As at twelve months earlier (July, 2010), the
placement rate for Self-identified Francophone candidates was just 59.55% (page 6 and
page 7, para. 11, at Appendix 5).
It is not for HOLA to comment specifically on the legitimate questions that these low
placement figures raise for Francophone articling candidates and lawyers (and others
interested in equality and fairness). Still, at many law firms, government and public service
offices, corporate in-house legal departments, administrative tribunals and courthouses,
speaking French is undoubtedly an advantage. The University of Ottawa’s recent
enrolment increases could be a factor leading to these low placement rates for
Self-identified Francophone candidates. Notably, of the 78 out of 104 unplaced graduates
who went to an Ontario law school (referred to at Appendix 6 to the Consultation Report),
just over half attended the University of Ottawa (40 of the 78).8 In this regard, correlation
does not imply causation. We would have to know more about people's experiences to say
more than this.
As already mentioned, a process could be and should be established, if one does not exist
already, for people to make a case that the reason they cannot find an articling principal
is that they are being discriminated against.
As Self-identified Francophone’s placement rate of 75% lowers the overall rate for equalityseeking groups, the University of Ottawa’s enrolment increases alone may account for
much, if not all, of the small 4-5% gap.
Insufficient Evidence in Consultation Report that Discrimination Causes Shortages
HOLA does not see sufficient evidence in the Consultation Report that discrimination
8
The other 27 [sic – 26?] attended other Canadian law schools.
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explains the shortages, nor the variations in the placement rates. HOLA does not dismiss
the possibility that isolated instances of discrimination arise and thereby possibly become
a contributing factor. Ultimately, HOLA has concluded that, in this instance and given the
information available, the profession needs a practical solution to a “shortage problem” and
not a solution to a “discrimination problem”.
Canadian lawyers are at the forefront in the protection of human rights, not just in Canada
but all over the world. Canadian lawyers have a keen sense of fairness and justice. Of
course, HOLA does not dismiss the possibility of discrimination and negative experiences.
Sadly, there are bad apples, still. But the probability that discrimination is the major factor
in unsuccessful articling candidacies decreases with the number of job applications and
job interviews the candidates send out and participate in, respectively. This is because
there are many good apples for every bad one.
Moreover, practising lawyers are not a monolith. They are 8,200+ law firm businesses (as
at May 2009) competing against each other for the best legal talent they can afford.
Lawyers do not leave the best affordable talent to the competition and deliberately hire the
less qualified/promising.
The “market” is not proven to be arbitrary or irrelevant to merit. Indeed, the legal
profession in Ontario, inclusive of the articling requirement, is as much merit-based as any
other system and probably more than most. The fact that eight people with great grades
— assuming they were all looking for an articling position in Ontario; but indeed perhaps
some had better opportunities — does not prove that articling is an unfair barrier.
Taking double-counting and the Ottawa U. increases into consideration, the need for
patronizing "action" disappears. Minorities do not need to be "saved" from the articling
requirement — at least not any more than non-minorities.
HOLA’s Concerns with Option 4
At first blush, Option 4 sells well because nothing is lost; the PLTC is an add-on. Option
4 provides a choice of either articling or taking a PLTC. Traditional articles would continue
for those who are able to find a placement and prefer same. Those who cannot, and those
who think a PLTC would provide better transitional training, can elect to take a PLTC.
What’s not to like about choice?
But Option 4 is dangerous. Two parallel roads are unlikely to survive for long. Adopting
Option 4 would mean, eventually, the end of articles (Option 5).9 We have heard that the
9
Notably, logic dictates that if the benefits of articling are so much in doubt, the Law
Society should prefer Option 5.
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experience in Australia supports this.10 HOLA does not recommend Option 5 and it is clear
to us that the vast majority of the profession does not want articling abolished.
The risk that Option 4 will create a two-tiered system — the “stigma” concern — is real.
It will be difficult to avoid. The difference between being paid for your services and paying
to be trained is difficult to ignore. Much of the bar and the public will make assumptions,
no matter how PLTCs are structured nor how much their benefits are touted.
It is known (or assumed) that, after a certain point in time, some unplaced candidates
express a willingness to article for 10 months for little pay (this being better than being
unemployed and in limbo). Yet still, they cannot find a lawyer to take them on. Allowing
candidates to pay for a course, instead, could be seen as paying your way into the
profession. This harms the reputation of the people involved and the profession as a
whole.
The “stigma” concern is heightened by arguments that because members of equalityseeking groups are “over-represented” in the unplaced group, fairness requires that
alternatives be created for them. This is disempowering. Moreover, it may result in
“backlash”.
If it is the case that a large percentage of unplaced graduates are from minority groups, it
follows that students attending PLTCs will be from minority groups, creating “second-class”
lawyers and reinforcing negative stereotypes.
Members of equality-seeking groups must join the rest of the bar as equal partners in
seeking the most practical solution to the articling shortage. The reality, and the message
that the regulator should send on a constant basis (unless the evidence does not warrant
it), for the benefit of the profession and the public, is one of equal competence.
Adding to the “stigma” problem is that the Law Society would not deliver PLTCs.11 Getting
into law school is known to be difficult; getting out is known to not be. Grades are bellcurved and there is very little incentive to fail a student. Indeed, getting an articling position
(that pays well) is a great part of the incentive to study in law school. There will be even
less incentive to fail a graduate paying a final $10,000 for a PLTC. (The “stigma” problem
will be most acute for graduates who, for convenience or familiarity, take a PLTC at the law
school that granted him or her the LL.B./J.D.)
10
We do not know if the trend in Australia was driven by student choice or by law firms
no longer seeing a reason or obligation to pay for graduates’ training.
11
Again, logic would dictate that the Law Society deliver the PLTCs. Only this would
put the regulator (and not the “market” or, alternatively, PLTC providers) in control. Notably,
the Law Society only relatively recently abolished the extended skills and professional
responsibility program for all law graduates.
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Maintaining Articling Protects the Public
The evidence that the shortages have been created by recent and extrinsic forces is
persuasive. The demand for articling students from practising members of the Ontario bar
has kept pace with the growth in the pool of potential articling principals. Neither the Law
Society, nor practicing members of the bar as a whole, have failed the public. Making that
point should not put self-regulation at risk.
As already seen, the market plays an important role in protecting the public. It would not
be in the interest of the public that the size of the Ontario bar be determined by law schools
in Ontario, Australia, the U.K., and elsewhere, limited only by the willingness and financial
ability of some to study abroad.
There is no shortage of people who would like to join the legal profession in Ontario. The
six (and now seven) Ontario law schools collectively reject many thousands of enrolment
applications every year.
If a systemic alternative to articling is established, law schools in Ontario and elsewhere
will feel less restrained to keep enrolment at reasonable levels, as their graduates will be
able to pay for a PLTC and start practising. Similarly, even more students who cannot get
into an Ontario or Canadian law school will travel abroad and return, if finding articles in
Ontario were not a concern.
Articling Should Not Be Characterized as a Barrier
A 2008 consultation of the profession concluded (as per a Report to Convocation dated
September 25, 2008) that, according to the profession, “Articling should not be
characterized as a barrier, but rather as a core component of the licensing process”
(underline added; Appendix 7 to Consultation Report, p. 2). All of the current pressures
on articling shortages were either present or in the horizon in 2008.
Pressures Present or in the Horizon in 2008
In 2008's “Articling Requirement and Projected Increase in Candidates for Licensing”,12 the
Law Society stated that: (1) it expected to see a 4% increase in articling candidates every
year, mostly as a result of increased international candidates; (2) the University of Ottawa
was expected to increase enrolment by 60 spots; (3) the proposed law school at Lakehead
University was referred to, as was the proposed law school at Wilfrid Laurier University; (4)
the potential for future proposals for law schools at Laurentian University and Nippissing
University was acknowledged; (5) it was expected that Canadian-born students would
continue to return, and in increasing numbers, from Bond University in Australia (where “at
least” 25 of the 175 annual graduates already were Canadian-born students, mostly from
12
See pp. 2-3 at http://www.lsuc.on.ca/media/licensing_appendix_7.pdf
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Ontario, intent on returning); (6) it noted that, “Other universities in Australia are now
indicating an interest in attracting Canadian candidates ...” (7) further, “A variety of
international law schools are now also catering to Canadian born candidates who are
unable to find law school placements in Canada. Schools such as Leicester and
Wolverhampton in the U.K., and potential new law schools in New South Wales and other
common law jurisdictions are opportunities for these potential candidates, and most will
seek to return to Canada upon completion of their law degree”; and finally (8):
In the 2010/2011 licensing year, the Law Society might expect some
issues around the double cohort (the first group that went from grade 12
to university, skipping grade 13/OAC - the final year for OAC was 2003 the 2003/04 academic year no longer had OAC). There could potentially
be a larger group coming through the system either because Canadian
law schools have accommodated increases to support this cohort or
because the candidates obtained their degree internationally. Even if the
law schools only increased their class sizes by a very small 5% (on
average this would only add perhaps 10 to 20 new students per class
which would not be too difficult for them to balance), there could be an
additional 100 or more students in 2010 and every year following.
Temporary Solutions While Maintaining the Articling Requirement
The Law Society should adopt one or more of the “other” ideas (not classified as an
“Option”) in the Consultation Report, while maintaining the articling requirement, including:
“forgiving certain fees for articling students who take jobs outside the larger
centres to encourage them to leave the larger metropolitan centres” (page
14);
permitting articling students to provide all the legal services a lawyer is, with
some exceptions, while the articling principal remains responsible and
accountable for ensuring that the student is competent and prepared – a
move made recently by the Law Society of British Columbia (page 15, fn
21); and
“the establishment of a body made up of lawyers and articling students to
provide legal representation to underserviced communities across the
province and specialized clinic and other legal services for various
equality-seeking groups” (page 15).
According to the Consultation Report, “To be financially viable [the last suggestion] would
likely entail a levy on the profession. If it were intended to develop sufficient jobs to
substantially address the shortage issue (200 might be estimated) and $45,000 were used
as the annual salary, this could require approximately $9,000,000 or $250 per lawyer
licensee a year for salaries alone” (page 16).
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A partial subsidy is workable; and the establishment of a single body or corporation is not
necessary. The Law Society could create any number of forms of financial incentives for
lawyers to take on articling students, such as a stipend for small firm lawyers who take on
articling students or waiving LSUC fees for principals taking on articling students. A more
significant subsidy could be, for instance, paying the candidate’s first three months’ salary.
HOLA believes that the profession would easily accept a $100 levy.13 Particular
geographic and practice areas could be targeted for the subsidy.
Legal Aid Ontario and the Law Foundation of Ontario should be pursued as additional
sources of funding support.
Lack of Quality Assurance Systems
The Consultation Report notes the lack of Quality Assurance systems regarding articling.
The absence of “measurement tools” is no reason to dismiss the anecdotal evidence of
members of the bar who consider their articling experience valuable and who believe it
should be maintained. If “measurement tools” are necessary, the answer is to get them,
not to assume traditional articles are ineffective or discriminatory.
Notably, if Quality Assurance systems are necessary, the Law Society must undertake the
administrative burden said to count against Option 2, in any event. The administrative
burden is not avoided, but merely shifted from paying articling principals to paid PLTC
providers; it remains with the Law Society either way. After all, if PLTCs are introduced
and continued, it should be because PLTCs are demonstrably more effective at training
graduates than traditional articles and because PLTCs are demonstrably more fair. This,
in turn, requires that at least a representative sample of traditional articling placements be
assessed, in order to set the benchmark.
Indeed, since PLTCs would have a law setting placement requirement, it is difficult to see
what there is to fear about Option 2. The assumption appears to be, if there is one, that
law firms taking PLTC students for a very short period of time will fill out all the necessary
questionnaires and participate in all the necessary debriefings if they get almost any
student for free, but many will balk at paying the graduate of their choice a fair wage.
The Cost of the PLTC is a Further Burden On Law Students
Respectfully, the Consultation Report fails to give enough attention to the financial burden
PLTCs would impose on graduates — a burden disproportionately felt by low income
13
Any suggestion that some lawyers would find a $100 levy oppressive and may not
survive it would be difficult to understand. What evidently those lawyers could not survive is
additional competition for files that leave little to no profit. Continuing to increase call sizes will
not help those lawyers at all. Nevertheless, to address this concern, the subsidy program could
permit the levy to be waived/rebated under certain conditions.
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individuals and their families, to the point where some may not pursue legal studies at all.14
Perhaps the issue receives little attention because, even for a low income person, it is
better to take the PLTC than to be in limbo, and it is only an additional option — i.e., the
low income person is free to continue looking for a job. In HOLA’s view, this ignores that
introducing PLTCs may lead law firms to not want to hire graduates as articling students.
Under both Options 3 and 4 (i.e., as long as a parallel system is established), law firms of
all sizes would be free to prefer graduates with a PLTC, assuming the graduate is better
trained. At the same time, even strong law students/job candidates could seek a PLTC as
a further competitive advantage, particularly if the PLTC is made available during the law
school years. The question that has not been asked is whether a process whereby all or
a majority of graduates pay for a PLTC is better than the current process because 12% of
the 2010 licensing group last year (some of whom were not seeking a position) could not
find a paying placement by last March. This may not happen immediately upon adopting
Option 3 or 4, but that could be the end result in just a few years. Witness Australia.
Under Option 4, law firms of all sizes are to choose between paying articling students for
10 months or having (more) PLTC students for free (for a shorter period). Many firms may
choose not to pay, and that means fewer hires, which means more graduates having to
take the PLTC.
A foreseeable consequence of creating PLTCs, then, is that many graduates of low
financial means, who would have found a paying job, will not.
The notion that even more debt-ridden students will choose to practice public interest law
outside large urban centres is faulty.
For Option 4 to be in any way acceptable, it would have to come with substantial subsidies
and funding programs to address these cost concerns. If the practising bar will be levied,
let it be to create the articling positions that it knows and believes in, not to create PLTCs;
let it be to pay students, not to pay PLTC providers.
Increasingly, Graduates may have No Real Choice re: PLTC and Hanging Up Shingle
Traditional articles provide an established and predictable system for “assess[ing] the next
generation of lawyers ... [and] hire[s]” (page 6) with few strings attached. Within reason,
no law firm has to be concerned about being sued for telling an articling student that there
will not be an associate position at the end of the road. Hiring an associate is a bigger
step, psychologically.
14
The Consultation Report acknowledges that it is unlikely that the PLTC would cost
less than $7,600 (page 26) and that may be a not-for-profit-basis estimate.
Page 14
An unintended result of Options 3 and 4 could be that not all of the would-be
principals/firms will hire (as many) graduates, forcing many graduates to immediately hang
up their shingle. Even if most of them survive (thanks to the PLTC under their belt), what
has happened is that many were deprived of the opportunity of having been “seen” by an
established lawyer who was willing to be an articling principal and, perhaps subsequently,
supportive employer and mentor. In a system where articles are not a requirement, the
tradition of being an articling principal as a way of mentoring and perhaps growing in size
— with few strings and expectations — will, slowly, if not immediately, erode. The result
will be lawyers without the benefit of years of experience from past generations. The public
will suffer even if most new lawyers hack their way through.
The Law Society acknowledges that newly-licensed lawyers in sole and small firm practice
are at “higher risks for complaints and negligence claims” (page 21). We do not know what
the result will be of waves of law graduates practising for the first time without the benefit
of articling as we know it. We can expect increased costs to investigate and address
complaints and to defend lawsuits. These costs will shared by the bar as a whole.
The idea of subsidizing articling opportunities, instead, therefore, makes perfect sense for
the profession and the public.
Conclusion
Options 3, 4 and 5 involve drastic changes to historical requirements for responsible entry.
The potential for negative unintended consequences is significant.
The profession must keep things in perspective: over the last ten years, the practising bar
has grown by 33%, and notwithstanding that a good part those new members cannot be
articling principals, yet, the bar has increased articling placements by 24%.
Extrinsic pressures and even a double cohort year (causing the unplaced rate to jump, as
was predicted in 2008, from 7.7% to 12.1% last year)15 are at play. In the absence of
evidence that practising members of the bar are maliciously declining to hire these
additional candidates, the fact that the market failed to absorb them all is simply evidence
that the market reached the right size.16
HOLA believes that the Law Society should:
15
16
Consultation Report, page 10.
Of course, it is not suggested that, for instance, everyone looking for an articling
placement as at March, 2012 attended the University of Ottawa or was an NCA accredited
candidate. Rather, the point is that increased interest in entering the profession does nothing to
create the client files that put articling candidates to work.
Page 15
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provide the warning at Option 1;
develop and administer the Quality Assurance Improvements at
Option 2; and
adopt all the temporary measures necessary to eliminate the current
articling shortage while maintaining the articling requirement. This
includes a reasonable levy for two or three years.
After that, the situation can be reassessed.
HOLA is especially concerned that Option 4 will create to two-tiered system and perhaps
eventually result in the end to many articling positions. This does not serve members of
equality-seeking groups, who are, we can be proud to say: apparently competing quite well
for placements. Hopefully, this message will not be lost in the justifications for change.
HOLA will continue to pursue its valuable objectives. We have established a bursary for
a Spanish-speaking student at Osgoode Hall Law School; fostered numerous formal and
informal mentoring relationships; delivered networking events and programs; acted as
referral sources to one another for potential clients and job candidates, including articling
candidates; and we look forward to doing many more things.
Fulfilling HOLA's objectives does not require us to ask the Law Society to just allow
everyone to pay for a course. Such a request would not be warranted on the evidence
(and the need to combat unfairness). And ultimately, the move strikes us as
counterproductive to the short- and long-term interests of all equality-seeking groups.
Thank you for the opportunity to comment on such an important issue and for the
extension granted to file these submissions.
Yours truly,
Guillermo Schible
Victoria Romero
Joseph Carpio
Claudia Falquez-Warkentin
Jessica Gonzalez
Directors, on behalf of the Hispanic Ontario Lawyers Association