A Legal Education in the Public Interest? The Legal Practice Program and Access to JusticeNSRLP
The Law Society of Upper Canada’s Professional Development and Competence Committee has recommended that the Legal Practice Program (the LPP) – a one-year course at Ryerson and Ottawa U., which offers law graduates an alternative to articling – should be discontinued in 2017.
The LPP was introduced as a three-year pilot project as an alternative route to qualification, for students who were unable to find articles, or who preferred instruction.
I agree with the robust defence of the LPP being made by, among others, my colleague Professor Noel Semple and blogger Jordan Furlong. However, I think they are taking the Law Society’s bait by responding primarily to the Committee’s assertion that the problem with the LPP is that it is perceived as second-class to the articling process.
“In the Committee’s view there is evidence that the alternative pathway of the LPP is perceived as second tier. The Committee strongly emphasizes the language of “perception,” because there is no evidence to suggest that the LPP is in fact second-tier or merits the perception.” (para 53)
Both Noel and Jordan rightly argue that there is insufficient evidence to claim that the LPP is second-class to articling – and that its second-class status appears to be a self-fulfilling prophecy (reinforced by the negative comments of leading Benchers) and an economic issue (how many students would prefer to be paid for just 4 months rather than 10?).
But I think that as we often do in the justice system, we are asking the question in the wrong way, focused on the (internal) impact on the profession and not the (external) consequences for the public.
Who decides whether or not the LPP is “second-class”?
The only voices in this debate are those of the profession – and more faintly, those LPP students whom we are told by the evaluator had positive things to say about the program, but would prefer, of course, the alternative of being paid for 10 months in articling.
Nothing I have heard from any lawyer commentary on the alleged second-class status of the LPP refers to serving the public or enabling Access to Justice. These lawyers’ comments are instead focused on what the so-called “second-tier” status of the LPP means to them, roughly translated as, “students we wouldn’t hire at my firm”.
Of course the profession is going to be generally unsupportive of the LPP. It threatens their monopoly and control over the qualification process via articling. It allows “in” those whom they might have rejected for articles as a “bad fit” – meaning, wrong gender, wrong colour (ironically, the Law Society has just released the Equity and Aboriginal Issues Committee Report on addressing continued discrimination against racialized licensees, see page 39) wrong class, wrong politics, wrong attitudes, wrong grades. I saw the same backlash among many in the legal profession when I worked to establish a first-of-its-kind Bar Admission program in Hong Kong in the 1990’s.
What “second-class” really seems to be is code for those newly admitted lawyers whom the big firms won’t hire. Instead they will hire back their most profitable articling students, the ones who accept the firm culture and fit in.
To many of those in the profession, a “second-tier” qualification means a threat to their status and authority and a dilution of the gene pool.
What would a “second-class” LPP mean for system users?
Let’s think about this from the perspective of the public, not the profession. After all, as the Committee itself says (before never referring to this again):
“The focus of the Law Society’s licensing process is to ensure that candidates have demonstrated that they possess the required competencies at an entry-level to provide legal services effectively and in the public interest.”
Since the Committee does not ask, I shall. Does the LPP contribute negatively or positively to the effective provision of legal services in the public interest?
Does the LPP provide the public with lawyers of the same standard as those who have completed articling?
With the existing very small data set, there are arguments raging about how many LPP graduates fail the Bar exam compared to articling students.
The far more important point for the public is that every lawyer admitted to practice in Ontario must pass the Bar exams, whether they took the LPP or completed articles. The Bar exams currently ensure that every lawyer has to meet the same standard (although whether the Bar exams are successful in ensuring competence is an entirely different (and unanswered) question). But the universal threshold of the Bar exams ensure equal opportunity competence/ incompetence among those called to the Bar, regardless of their route to qualification.
So why would the public consider a lawyer who took their training at Ryerson or Ottawa U. instead of via articles, and then passed the Bar exams and was called to the Bar, to be second-class?
Does eliminating a “second-tier” of qualification promise any solution for the tens of thousands of Canadians who cannot afford a lawyer?
Up to 80% of litigants in family court – and more than 40% in some first-instance civil courts – are there without a lawyer. They either cannot afford a lawyer at all (at the average rate of $350 an hour) or they have run out of money to pay one.
Can this group – which now comprises a majority of Canadians – expect to see an improvement in access to legal services as a result of this squabble over routes to admission to legal practice?
Of course not. The “first-tier” lawyers, whom the elimination of the LPP would leave as the only tier, are not being trained to serve the underserved. They are far too busy working 60 hours in articles at Canada’s largest law firms which provide articles to the greatest number of law graduates – with profit- generation as the goal.
Can the LLP offer any potential for enhancing Access to Justice?
Unlike the experience of articling, which because of their superior hiring capacity is controlled by the very largest law firms, the LPP could deliberately prepare students for the new world of legal practice that lies outside Bay Street.
Perhaps this could be the LPP’s specialism, with training offered for law graduates who want to set up innovative practices to serve the primarily self-represented who currently cannot find legal assistance. Ryerson’s Innovation Zone has already undertaken some interesting A2J projects. The LLP could train its graduates to market themselves to the tens of thousands who cannot afford to spend $50,000 on a lawyer – but would and could spend $5,000 or even $10,000.
Perhaps more of these newly called lawyers, rejected by the large firms as “second-class”, will end up serving the public in accessible, affordable, leading-edge ways.
What might the public want?
As one commentator on Jordan’s blog commented caustically:
“Maybe what the public truly does need is second tier lawyers. Because God knows they can’t afford first tier rates.”
There is no evidence that LPP grads are second-tier.
And the so-called “first-tier” lawyers who are keeping them out of the profession might want to consider whether in future they wish the public to distinguish them from other lawyers by anything other than their fee levels and billing systems?