On Nov. 22 the ‘benchers,’ as the Law Society of Upper Canada’s governing board is known, will be voting on the fate of articling in Ontario. Currently articlingis in practice with multiple countries in the Commonwealth and consists of a professional training program at a firm completed after passing the bar and before becoming a qualified lawyer.
Many students wish for the status quo system to remain, however, the Law Society has motioned for a dramatic change to a two-tiered articling system.
Examining the pros and cons, the best choice may in fact be to scrap it all and start fresh.
The routes of articling lay in the English common law. Articling traces back to England where it began as a means to train young apprentice lawyers in the art of the law and its practical nature. This usually involved a student cowering in the corner of a senior barrister’s office frantically taking notes. However this is very far from what articling is today in Canada. In Ontario articling is seen as the in-between stage that a law student goes through after graduating and before becoming a full-fledged lawyer. At the moment it’s a necessary step to become qualified. This necessity has more recently transformed into a miserable reality for students. At this time, second-year law students are vying off against each other for coveted eight to 10 (or less) summer positions at Ontario’s largest and medium sized firms.
Securing one of these spots allows students to secure an articling position when they graduate from law school the next year. Second-year placements have been steadily dropping.It is suggested in a Macleans article titled, “Should articling be scrapped?” that up to 15 per cent of students will fail to secure articling positions; unable to qualify as lawyers until such positions are found.
In order to combat this issue the Law Society of Upper Canada formed the Articling Task Force in 2011. The task force put forward a motion to the benchers to adopt a new system to sit parallel to the current articling system, known as the majority report.
The report outlines a system whereby students unable to place in articling positions will apply to a course instead. This course would involve an in-class portion for several months, and a placement in the field for the remainder. The system would be in place for five years before being re-evaluated.
This model is criticised for being two-tiered; some students being paid to qualify and others paying to qualify. There’s a real fear that students of this parallel program will bear a stigma for being unable to place in articles.
In response to the majority report, the Advocates Society of Ontario released a report this semester, known as the minorities report, to abolish articling all together. Other professions such as accounting, have taken this approach and abandoned articling — moving immediately to hiring students after graduation.
If the majority report were adopted, it would still allow for those unable to place in articles to become lawyers. The fear of not being able to qualify as a lawyer is far greater than the fear of having to do a course or bear an imaginary mark of shame. The program also provides a standardized form of qualification as there is a worry that many large firms are no longer being stringent enough in preparing lawyers.
Unfortunately, the system would force some students to add to their already large student debt to pay for a course and skills that many of their classmates will be paid to learn. It’s inevitable that a two-tiered system will result.
The report leaves more questions unanswered than those which it’s trying to answer. There’s no indication of who will structure or create this course, especially if it only lasts five years. If the number of placements is already reducing, where will they find these co-op type placements to put the students in?
Following the minority report, the legal system would follow other professions and simplify their qualification process. Students will simply write the bar exam and learn the necessary skills at the firms they choose to practice at.
The problem the two-tiered system or systems unable to accommodate the number of students is avoided with this method and a clean slate is put forward.
The problem is that hundreds of years of tradition are abandoned due to an inability to find a solution. If any doubts of proper qualification existed, abolishing articling will only exacerbate them. There will be no means to maintain a standard of professional skills for lawyers entering the field and clients will be unable to know if their lawyer has the necessary skills to defend them.
Law is unlike other professions and articling serves an important purpose. It may not be what it was, but it isn’t so arcane to be shelved and forgotten. Senior lawyers pass on the knowledge of not only routine realities of law but also ethical wisdom.
Young lawyers learn the value of communication and how to learn from their peers.
As the number of articling positions continue to decline and as the competition for those remaining increases, it’s evident that a means to qualify all law students is necessary.
Tradition is important, but I would have to choose the path that abolishes articling rather than choose an option which increases the financial burden already facing students.
Abolishing articling is radical, however it avoids a two-tiered system and law students are relieved of the stress of being unable to qualify as lawyers. Therefore, the most radical idea is also the most rational.
It will be in the hands of current lawyers to ensure that those who practice the law have not merely passed the bar, but are truly skilled in the art of the law.
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