The LSUC April Report and Proposed Changes to the Articling Structure
Before Committees and Convocation of the Law Society of Upper Canada (LSUC) took a break for the summer to go enjoy the agonizing Toronto weather, there was an agenda item that could have affected the class of 2017 – and we only found out about it a couple of weeks before its fate was to be decided.
Was it a provincial reduction in tuition? No. A diversity initiative to ensure that law schools reflect the socio-economic reality of Canada? No.
It was changes to the articling structure.
On April 28, 2016, the LSUC’s Professional Development & Competence Committee submitted a report to Convocation outlining changes to the licensing process. The report outlined three major changes:
(1) a new practice and procedure examination (PPE) to replace the current Barrister and Solicitor Examinations followed by a practice skills examination (PSE) after the articling term,
(2) an abridgment of the articling term from 10 months to 9 months,
(3) the possibility for a further reduction of up to 3 months from the articling terms of students having completed certain clinics, placements or other hands-on learning experiences during law school.
I will present an overview of these changes and provide some commentary.
An analysis of this report cannot begin without considering the purpose behind these changes as set out in the April report presented to Convocation.
The rationale behind this project had been that “enhancing licensing standards and requirements is one of Convocation’s top priorities”. The Law Society has recognized the need to enhance entry-level standards. In light of the articling crisis and the ensuing lack of mentorship, many young lawyers enter the workforce with inadequate training.
This is a very legitimate concern. It is also important to consider this issue through the lens of a young solo-practitioner. Young lawyers at big corporate firms have many more resources and safety nets for negligent work. Small firms or solo-practices however may not be able to closely monitor their students or young associates.
As such, a more robust licensing process could help teach students the necessary skills to adequately serve the public.
The report outlined the changes to examination accordingly:
“In place of the Barrister Examination and the Solicitor Examination the Law Society will develop a single Examination. Like the two current Examinations the focus will remain on practice and procedure, but the parameters will be revalidated to establish and confirm the appropriate benchmark to be achieved for entry level competence. The focus will be on those competencies in the practice and procedural areas whose frequency and criticality are of the highest importance for entry level practitioners. It will be known as the Practice and Procedure Examination (PPE) and will take place before the experiential component of the licensing process.
An additional Examination will be developed, characterized by its emphasis on practice skills as well as practice management, professional responsibility and ethics. Its introduction reflects both the October 2012 Pathways Report’s provision that an experiential assessment be developed for the licensing process and the increasing emphasis being placed on skills-readiness of candidates upon licensing. It will be known as the Practice Skills Examination (PSE) and will take place after the experiential learning component of the licensing process.”
The proposal would have added an exam following the articling period. This PSE would have been “characterized by its emphasis on practice skills as well as practice management, professional responsibility and ethics.
Its introduction reflects both the October 2012 Pathways Report’s provision that an experiential assessment be developed for the licensing process and the increasing emphasis being placed on skills-readiness of candidates upon licensing. It will be known as the Practice Skills Examination (PSE) and will take place after the experiential learning component of the licensing process.”
It is difficult to see how these competencies could be tested on paper. Although the purpose is sound, the practical components of this practical exam seem to be lacking. The committee was not ready to provide any details as to the specific nature of the exam either.
Experiential Abridgment and General Abridgement
Following the three-year pilot of the Law Practice Program (the alternative to articling which sometimes seems to be making the articling crisis worst by offering unpaid interns to private firms), the Committee wanted to incorporate the “importance of experiential learning and skills preparedness within the licensing process”.
In part due to the expansion of “experiential learning programs” in Canadian law schools, the Committee wanted to provide an opportunity for willing students and consenting principals to abridge the articling period by up to three months.
The Committee also wanted a general abridgment of all articling terms from ten months to nine months. This reduction would have also better integrated the three-month abridgment structure. In addition, the Committee noted that “in the Committee’s view a one month reduction is a procedural rather than substantive change, since it will not affect the competencies or requirements for articling”.
This entire abridgment regime is perplexing. The Committee’s main purpose was to better prepare lawyers for the demanding post-call world. By abridging the articling term, we would have taken one step forward with the PPE/PSE and a month’s worth of steps backwards. If better practical training is the goal, reducing time spent under the supervision of a mentor cannot be the solution.
One concern that I immediately raised with abridgment was the issue of pay. Why would we sacrifice an entire month’s guaranteed salary? The financial reality of law school is an enormous amount of debt. Each month of pay is precious. Not all employers cover the licensing fees either which were recently increased to close to five thousand dollars. More debt and more expensive fees go straight against abridgment. The same argument applies to the three month abridgment.
I personally would qualify for the three month abridgment due to my experiential training at Queen’s litigation clinic but I would never consider asking for such a thing and sacrificing three months of pay.
Furthermore, clinics help students develop crucial skills, learn more about the law than in any classroom, and help vulnerable members of society by providing free legal services, but they do not remotely compare to the experience one gains in a law firm setting.
Without taking away from the experience, I would equate my year long term at Queen’s Legal Aid as equivalent to one or two weeks of my summer job experience. In my experience, student clinics do not compare to the fast-pace and high-stakes environment of a firm. Equating them with three months of abridgment would go completely opposite the need to train competent lawyers.
Regardless of the merits in experiential training which may vary from school to school, the Committee failed to consider the financial consequences of abridgment. The need for abridgment for foreign trained lawyers is sound but a month should not be cut across the board. Associate jobs are not guaranteed.
Most firms seem to be around the 50% mark when it comes to hire backs and so we should not sacrifice a month’s salary from scarce articling jobs.
Substantive issues with the proposal aside, another major concern with this proposal was its lack of consultation with any legal stakeholders. The Law Society is a powerful and democratically elected body that is held to high standards. Many equity groups were upset that the Committee did not engage in an in-depth consultation process. I learned about the proposal in one of my first Equity Advisory Group meetings where I sit as the Law Students’ Society of Ontario’s Equity Officer.
I remember almost choking on the expensive cheese that was being served. I immediately expressed my concern that I was the only person in the room that would have been directly affected by these changes yet I felt like I was the last one to find out.
Although there were merits in the Committee’s proposal, the need for democratic transparency and consultation took over the conversation. The proposal is not dead either. The Committee promised to consult stakeholders before bringing the proposal back to Convocation. Initially, their timeline was to consult over the summer, an ill-suited time for students. I am unsure as to the proposal’s current status.
One of the main lessons to take from this whole situation was the need for us as students to engage more with the Law Society. The LSUC is an incredibly important organization to all of our lives as lawyers and they are also open to hear us out. We need to pay more attention, offer more feedback, and entrench our position within the dialogue. As the future voting members of the Law Society, we must keep ourselves up-to-date with the business of the Law Society and remain engaged with the process. The stakes are real and the consequences important.
All citations stem from the original report which can be found at the following link
Nima Hojjati (3L) is the President of the Law Students’ Society (LSS) and the Equity Officer of the Law Students’ Society of Ontario.