In search of the immersive articling experience
Given the uncertainties surrounding the f uture of the profession of late, it should be no surprise that the way in which lawyers are trained is also very much up in the air.
“The future of articling is still on the table,” said Peter Wardle, chair of the professional development committee for the Law Society of Upper Canada, the selfgoverning body that regulates Ontario’s legal profession. “The profession is very resistant to change and a lot of people are committed to some form of transitional training.”
What that means, according to Wardle, is that “radical solutions like an Americanstyle bar exam” are probably not in the cards for Ontario, and perhaps the rest of Canada. But like any good lawyer, Wardle, who is a founding partner at Wardle Daley Bernstein Bieber LLP in Toronto, hedges his bet.
“It’s unlikely we’ll go in that direction — although you never know,” he said.
When it comes to articling, hedging bets is becoming something of a habit, one that’s hung around, in the background or otherwise, for at least six years.
In 2011-12, Ontario’s LSUC went through a full- fledged debate about keeping or abolishing articling. The issue simmered, but blew up when increasing numbers of law school graduates — about 15 per cent of the class of 2013 — were unable to find articling jobs. LSUC’s solution was a two- year pilot Law Practice Program, which started in 2014- 15 with an Englishspeaking program at Ryerson University and a Frenchspeaking program at the University of Ottawa.
The LPP was conceived as an eight-month courseworkbased alternative to traditional articling, which has historically had law graduates serve an apprenticeship with qualified lawyers as a way of transitioning into licensed practice. The LPP combines online training and experiential learning with a hands-on work term of four months, considerably shorter than the eight- month articling timeline.
Some 260 candidates, of whom 221 graduated, attended Ryerson’s program that first year. The French course drew 19 candidates, of whom 17 graduated.
“About 75 per cent of our first- year group and 80 per cent of our second-year group was working full-time in law within six months,” said Chris Bentley, the LPP’s managing director and a former criminal lawyer and Ontario attorney-general. “In only three years, we have been able to train and find work placements for 700 people.”
But the LPP came under fire from critics, who said LPP graduates would be seen as a stigmatized crop who couldn’t get proper articling jobs. LSUC’s professional development committee responded to the noise in September 2016 by recommending that LSUC scrap the program.
That just made things noisier. Some 130 letters arrived at LSUC, with the vast majority demanding a reversal of the decision. Within two months, the professional development committee relented, recommending that the LPP be allowed to continue for another two years. Explaining his committee’s decision to the law society’s governing body, known as Convocation, Wardell cited evidence from lawyers and students who raved about the program’s quality.
“We decided that we can’t deal with the LPP in isolation and that we should take a look at it in the context of examining the licensing system as a whole,” he said. “We’re going to present various options and put them out for consultation.”
Bentley sees the controversy as part of a broader question. “How do you best serve consumers and businesses who have to deal with legal issues in the 21st century? In answering that question, we might have to consider that the approach we’ve been taking to date is not achieving the results we would like.”
The key, Bentley believes, is in properly identifying the public interest.
“If we get the public interest right, we’ll get the lawyers’ interests right,” he said. “Have we recognized the importance of technology? Have we implemented basic business initiatives to make ourselves more effective, more efficient and leaner? Have we looked at ways of reaching the public in non-traditional ways, including using design thinking or other innovative approaches? Have we recognized the importance of data? Have we done what successful businesses have been doing for years?”
The answer to all these questions, Bentley believes, is “no.” That’s why the process of preparing individuals to deliver legal services should be part of a continuum that provides what law schools don’t deliver.
“For years, law schools have resisted the notion that they are a training ground for lawyers,” he said. “The only reason they’re not saying that anymore is because of the universal desire for more experiential training than what they have historically provided.”
Given the current educational structure, then, practical training is a necessity.
“It’s about skills that can’t be developed in a classroom but only under real-life pressure,” he said. “As they are presently constituted, law schools teach students the law relating to everything from murder to merger, but graduates probably don’t leave law school with the competence to practise in either field.”
In other words, some sort of supervised work placement — “whether that’s in our program or elsewhere” — is required. To that end, Bentley says he’s a supporter of “good articling.” But he’s concerned that students’ experiences vary with the workplace.
“When I articled, I was worked to death but got a fantastic experience in terms of expectations, substance and process,” he says. “Unfortunately, not every articling position is like that.”
The LPP, Bentley says, gives the profession an opportunity to look into the merits of s t andardized training.
“What we’re set up to do is deliver a high-quality transition that would prepare lawyers for serving the public,” he said.
So far as the alternatives go, Bentley doesn’t believe that mere mentoring or other post- licensing approaches will do the job. Nor is he a supporter of the bar exam approach.
“Almost half the candidates in New York state fail their bar exams,” he said. “So you have to ask yourself whether an examination is the best way to prepare someone to serve the public.”
Different j urisdictions have tried what Bentley calls a “mishmash” of approaches.
“It’s unlikely that what the LSUC decides will please everyone,” he said. “But what LSUC does have is a great opportunity to position the profession to serve the people of this province in the best way possible.”
IT’S ABOUT SKILLS THAT CAN’T BE DEVELOPED IN A CLASSROOM.