A Legal Education in the Public Interest? The Legal Practice Program and Access to Justice

A Legal Education in the Public Interest? The Legal Practice Program and Access to Justice

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?

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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?

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Comments (5)

  • Larry E Doucet

    Self representation does not work it’s about making as much money in the shortest time possible the whole system is corrupt because lots of crime so be visited by all parties involved but they made it in such a bigger mney racket that only the rich can afford like the senators and just recently the RCMP got bailed out by the taxpayers why are these people being baild out bu us taxpayers and the poor guy like me are process as fast as possible to get rid of the problem.
    It’s all just as corrupt as the mafia an turned into one big money game which is outright communism and they all know it so why don’t someone something is done about it,the reason is gread.Lawyers are very greedy and only care about money,I was robbed out of my home use and wrongfully convicted and they want it to stay that way because it would be on the media and make a bad names for all nvolved. The system will probably never change and our legal aid is another corrupt system that or they don’t care much about anything. It’s all for the rich.

    October 19, 2016 at 2:25 pm
  • Bob

    Unfortunately, there is actually considerable evidence in the LSUC’s report that the LPP graduates (not the LPP itself) are “second-tier”, reflected in their considerably higher bar fail rate and their significantly worse job market performance post-call. Moreover, the fact that the “non-completion” rate for LPP enrollees is materially higher than for articling students is suggestive as to the quality of the LPP body (though, in fairness, that doesn’t actually reflect on the LPP graduates).

    I think your post does require some further corrections. Consider this statement:

    “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.”

    This is, of course, wholly inaccurate. “Canada’s largest law firms” hire fewer than 350 articling students, out of the 1800-2000-odd who article in any given year in Ontario – less than a quarter of the total. Indeed, the LUSC’s LPP report bears this out (see page 101 of the LSUCs Consultation report on the LPP). Most students article with “medium” sized firms (though I conceded since the law society bunches together firms of 6 and firms of 199 in this category, it’s not particularly useful), small firms (2-5 lawyers), sole practitioners, or government agencies. Moreover, there’s an awful lot of similarly in terms of the most common practice areas among articling students and LPP students (though, admittedly the data the LSUC presents is not complete, so it isn’t clear if there are material differences among less common practice areas)

    Finally, I think the more fundamental problem with this discussion is that it assumes the high cost of legal services is a function of a shortage of lawyers which can be resolved by cranking out more. It’s not. It’s a function of a shortage of lawyers WILLING TO WORK FOR WHAT ORDINARY CANADIANS CAN PAY. This is an important distinction. The baseline problem is that the people we admit to law schools have to be highly accomplished, hard-working, ambitious people. They simply can’t get into law school if they’re not. Unfortunately, these are the sort of people who have lots of options in their lives. They can get good, rewarding jobs, with comfortable salaries and decent working conditions without being lawyers. That fact sets a baseline on the cost of legal services. Most people who come out of law school (not all, to be sure) aren’t going to be pulling the hours that you need to run a successful, say, criminal or family, law practice for the sort of money that ordinary people can afford, when they can get a nice cushy government job, making more money, with a pension and spend the evening with their kids. Cranking out more law school graduates doesn’t change that, it just means you have more frustrated new calls leaving the profession (and, again, the numbers for LPP grads not working as lawyers is suggestive in that regard).

    In economic terms, the problem is that lawyers are recruited from a population with a high reservation wage. There are exceptions, of course, people who are willing to work for less money for their own reasons (or people who are independently wealthy), but that’s a distinct minority (and, aside, it’s not clear that they are neccesarily over-represented among LPP students). Cranking out more lawyers doesn’t address that problem.

    The real solution is to make it easier for people with a lower reservation wage – paralegals, for example – to offer legal services. At the end of the day, you’re right that for most people a “second-tier” provider of legal services is an improvement over nothing at all – I’ve often said that the fact that a Volvo is a safer car than a Chevy shouldn’t preclude people from buying a, much cheaper – Chevy. But, the real second-tier isn’t more lawyers, it’s a different, much more limited (and much cheaper) pool of legal service providers. That’s really where we should be having this discussion.

    October 19, 2016 at 3:39 pm
    • nsrlp

      This is a great post – although I would quibble with your claim that most articling positions are not provided by the biggest firms (199 seems like a pretty large firm to me) who (importantly) serve primarily commercial clients, and that the LPP manifests lower Bar pass rates than articling students – there have only been two years of LPP grads and the numbers are different if you look at first, second and third attempts which students who both article and take the LPP are entitled to.

      But those points of difference and a few others aside, I want to focus on your point that this is not about creating more lawyers, but creating more lawyers whom Canadians can afford. I agree 100%. This has been the message of the NSRLP since its inception. If my blog did not make it clear that this is and was the most important issue for the public, I want to clarify. That was really the whole point of the blog, and I am sorry if this was not clear from what I wrote.

      October 21, 2016 at 2:05 am
  • Node

    Articles like these often confuse me in the sense of if the underlying goal is to make things better for the public where people recognize something in the system is broken to the point where it doesn’t work for the average person then shouldn’t the real focus be on changing that system as a whole?

    Example, imagine if this website was the “court process” and programmers were “lawyers” per se. The site should be designed in a way where an average person can just pick up the keyboard, start typing/uploading items to then publish the information for people to evaluate. Then there are admin and moderators who are essentially the “judge” where based on standards things can get through or not.

    To me the current problem would be like the site isn’t user friendly and nor was it designed for the average person. It would be as if everyone needs to understand coding in order to output and publish some simple words. So instead of fixing the whole site system articles like these sound like people are focused in finding ways to hire more affordable programmers or even offering classes to teach people how to program. Is it just me or does that just seem like people don’t want real change for whatever reason?

    Like there, I would imagine if you really want to fix the system of the site these “programmers” should be coding and building the site to be super user friendly where anyone can in a sense accurately submit things with little to no coding knowledge. Only in certain situations such as maybe a person is like literally blind where they then would require special help.

    To me anyways, in staying with the website theme it’s like the current system is designed where you could have admins and other programmers arguing with each other on how a person has “syntax errors” or “poorly written code” as like technical excuses to reject people’s content. All this while the person who just wants to get their content published is paying like $200/hr to figure this thing out. Regardless if you now find someone to do it for $20/hr the fundamental problem of the way the system is designed to operate is still there.

    Actually, the more I think about it the focus I feel should be more about changing the whole system and redefining what lawyers can/should offer. Not too long ago even with websites people had to manually create the sites with like html. Hence, you either knew how to code or you couldn’t make a site to be to on the same level of playing field as say people/organizations with a ton of money . Nowadays you have programmers who made content management systems like the one this site uses. That in effect allows the average person to run and operate a website without necessarily the need of a programmer except in specific situations. So like there it’s about evolving the whole process where it feels like here the court system doesn’t want to evolve. Until that happens everything else is kind of irrelevant in many ways.

    Unless it’s just me I don’t see how just pumping out more affordable lawyers per se is really fixing anything in the long run. The whole system needs to evolve from top to bottom to cater to the modern day needs of the average person if one of the primary focus is to make self-representation more fair and accessible. I don’t doubt that it would unfortunately cost people their jobs who are comfortable living off of like charging people $200/hr to navigate through a complex system. But I would imagine it is necessary.

    October 20, 2016 at 10:15 pm
  • nsrlp

    Great comment thank you. I wrote a book about this – “The New Lawyer” – that I have just written a 2ed of. I agree that we need to rethink just what it is that lawyers do that brings value to clients. This is about affordability, but it is also the kinds of client service and support that actually meet the needs of modern consumers.

    October 21, 2016 at 2:09 am

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