Déjà Vu: We Keep Asking the Wrong Questions about Licensing Reform

The Law Society of Ontario (LSO) has produced a licensing reform report setting out proposals for “transitional education” – that is, taking law students from graduation to their call to the bar. The LSO’s Professional Development and Competence Committee has proposed four options for which they are now seeking feedback.

Billed as “a plan for a long-term, sustainable licensing system” to meet the “profound disruption and transformation of the legal profession”, the four proposed options are:

1. No change.
2. Same licensing model, but require articling students to be paid the minimum wage, and introduce an additional new “skills examination” (described at pg. 31 of the Report).
3. The elimination of articling, which would be replaced with a wholly examination-based licensing model, to include the current substantive exams as well as the new skills examination (with some additional requirements for those in a small firm or practising as sole practitioners).
4. Instead of articling, all law grads would complete the Law Practice Course in either English or French (the LSO proposed abolishing the LPP in 2016, see below), then pass the barrister and solicitor exams, and the new skills examination.

Maybe it’s just me, but I’m struggling to see how any of these options address the Access to Justice crisis (or even – low bar – don’t make it worse). And what exactly is there in these four options that would equip the profession to manage “disruption and transformation”?

A Chronology of Nothingness

For the past 15 years, the LSUC (now the LSO) has gone back and forth on how to organize transitional professional training – law school to call to the Bar – with a plethora of task forces and committees.

It seems instructive, although depressing, to remind ourselves how many circles we have walked in here:

• In 2002, the Task Force on the Continuum of Legal Education makes an interim recommendation to eliminate the Bar Admissions Course, then required for all law graduates in addition to articling. The Bar Admissions Course would be replaced by the Licensing Process, which would comprise articling and examinations, ending classroom instruction.
• The Task Force commissions two research studies – one by the Performance Assessment Group, and one by myself and Professor John Manwaring from Ottawa U – to develop core competencies for new lawyers (John and I did this using focus groups and a Delphi process seeking the views of lawyers).
• In 2003, Convocation approves a Licensing Process, to commence in 2006, that will comprise a month-long classroom-based Skills and Professional Responsibility Program (which John and I wrote using a problem-based learning model to get at the competencies) and Licensing Examinations on substantive law topics (which would be held one week after the end of the Skills Program, much to the consternation of students).
• In 2006, the new Licensing Program commences. The Skills and Professional Responsibility Program receives mixed student evaluations, some loving it and some hating it, and there are lots of complaints about the very short time available for students coming off the Skills Program to prepare for the Licensing Examinations.
• In 2007, the LSUC strikes a Licensing and Accreditation Task Force. This four-member group reports in January 2008, recommending the abolition of the Skills Program. Reasons given include both the logistical difficulty and the cost of maintaining a small group teaching approach with sufficient practitioner instructors. The Law School Deans tell the Task Force that law schools already teach skills and professional responsibility.
• In 2008, the Skills Program is abolished and instead candidates are required to complete a professional responsibility and practice requirement in tandem with their articles. After call, lawyers must complete 24 hours of professional development within the first two years of their call to the Bar.
• In 2012, the Articling Task Force recommends the establishment of the Law Practice Program (the LPP), a full academic year skills-focused program that would substitute for articles (this was in large measure a response to the difficulty of obtaining articles, especially for students of colour and international students). The LPP commences at Ryerson in English and Ottawa U in French.
• In 2016, the Professional Development & Competence Committee proposes abolishing the LPP. Convocation rejects this, voting to keep the LPP for another two years.

Which brings us to the present, and last week’s report of the Professional Development and Competence Committee, and the four options outlined above.

Is it just me, or are we going in circles here?

Deep Structural Problems

We know what the problems are (and have since 2002). They include the following:

• The responsibility of supervising transitional training is burdensome and costly, and one that the LSO has been, at best, ambivalent about for many years.
• Large law firms prefer to train graduates in in-house programs that promote “their” particular practice ethos and approach (leaving students articling in smaller firms without additional training).
• Students rightly resent onerous and expensive transitional training programs, especially when they are duplicative.
• Many students, and especially students of colour, mature students and international students, continue to struggle to find articles, and there is growing exploitation of articling students (not paying them or paying them very little).
• Law firms that hire articling students are invested in them as a source of cheap and easily exploited labour, with articling students ready to do anything in order to be hired back as an associate. Efforts to emphasise the educational elements of articling and the supervisory responsibilities of principals, discussed in some of these reports and especially by the Articling Task Force, have been largely unsuccessful.
• Historically, when the legal profession tells the law schools what they should be doing, the law schools respond by saying no problem, we are doing this already. This is an inevitable consequence of the high level of dependency of the law schools on the profession. I experienced this same phenomenon when I worked in the UK in the 1980s (see also the 1992 MacCrate Report in the US), although in both the US and the UK many law schools have significantly increased their focus on skills training.
• The legal profession continues to be the fiercely protected purview of a white, middle-upper class hierarchy who feel entitled to keep riff-raff out by citing “standards.” I encountered this close-up in Hong Kong in 1990-92 when, against the wishes of the Bar, we began a Bar Admission Course at a polytechnic university that admitted Hong Kong Chinese students from “the wrong side of the tracks”.

The LSO’s four options approach – in common with all the other task forces and committees before them – is to ignore the impact of these structural and cultural factors, and dive directly into detailed action plans or “options” (where the legally trained feel so much more comfortable). Unfortunately, this strategy ignores and reinforces the deep structural problems of power, conflicts of interest, and self-interest at play here.

Next Steps: Addressing the Structural Problems First

It’s hard to get motivated to respond to the Professional Development and Competence Committee’s four options. Based on the above track record, in another couple of years they will be walking it back and establishing a new Task Force.

The problems are structural and cultural, and any effective next steps in Licensing reform must recognize that.

Until we acknowledge and work out how we shall (or decide that we cannot) address these issues, no amount of rearranging the deckchairs on the Titanic will save us, as the chronology above illustrates.

Instead of choosing from among the four options, could we begin instead to talk about the following core questions?

• Should the profession have responsibility for transitional education from law school to practice? And if the profession doesn’t want this responsibility (when an organization doesn’t want to do something, they tend to do it badly) – what should we expect of the regulator?
• What role should – and more importantly, can – the law schools play in transitional education?
• How do we ensure that law graduates are not included in/excluded from the profession because of unfair and discriminatory hiring practices, or the economic self-interest of law firms?
• How should we approach transitional education if our goal is to create a future profession that responds to client needs affordably, empathically, and effectively? For example, how would we create a profession that offers economically realistic career-building opportunities for young lawyers to serve low-income communities, marginalized groups, and people living in rural areas?
• More broadly, can we predicate our discussion about transitional training on the reality that the legal profession is changing – some would say transforming? Ideas that were generated 15 years ago seem unlikely to work for the profession today (think: technologies, the self-representation phenomenon, failing faith in the legal system).

We have many amazing people in the legal profession doing innovative and important work. We are capable of, and deserve, a bolder, more imaginative, and just more interesting conversation about what the options might be for transitional training.