home Student Caucus Submission to the Law Society of Upper Canada in Response to the Pathways Report

Submission to the Law Society of Upper Canada in Response to the Pathways Report

What follows is the full-length November 12 submission by Student Caucus to the Law Society of Upper Canada (LSUC) in response to LSUC’s Pathways Report on the future of the articling requirement.

EXECUTIVE SUMMARY

This memorandum is submitted on behalf of the Student Caucus of Faculty Council of Osgoode Hall Law School – an elected body of JD students. Student Caucus is the administrative and academic planning arm of Osgoode Hall Law School’s student government, the Legal and Literary Society. In drafting this response, Student Caucus consulted the Osgoode student body and has benefited from their written submissions. Unless otherwise indicated, italicized quotes contained in this document are taken from the submissions of Osgoode JD students.

With respect, before outlining our response to the Pathways Report, we feel it is important to note the following:

  1. Benchers are removed from the lived experiences, needs, and concerns of law students in today’s economic climate. Because law students are critical stakeholders in this debate and are able to give unique insights by virtue of their position, student input should be closely considered in the LSUC’s deliberations.
  2. The discussion to date appears to be focused on the experience of larger firms and has not adequately considered practice areas that serve vulnerable communities, including the family, criminal, and immigration law bars. Both the Majority and Minority Proposals put these communities at increased risk.

Overall, feedback from Osgoode JD students indicates an overwhelming opposition to the Majority Proposal. While students agree that the status quo is untenable, and that the current licensing system is not “transparent, objective, impartial or fair”,[1] we have many concerns regarding the Majority’s recommended two-streamed, two-tiered solution. These concerns include, but are not limited to, the following:

  • The Majority Proposal will create a steep divide between students who article and students who are licensed through the LPP, particularly disadvantaging members of equity seeking groups.

“As a member of the 2014 class, I object to being a guinea pig for an untested second-track process in lieu of articling. This process is grossly unfair and prejudices future employers against any students in this track.”

“All the [LSUC and legal profession] diversity talk is merely disingenuous and self-congratulatory. This is a proposal for a two-tiered system, which will perpetuate basic inequities in the legal profession.”

  • The Majority Proposal increases licensing fees for all students, adding more debt to an already historically debt-burdened cohort of law school graduates.

“There are brutal hidden costs in this proposed regime. It forces already debt ridden students to stare down another 8 months of extraordinary costs: LPP tuition PLUS moving costs for non GTA/Ottawa students PLUS the cost of living in either Toronto or Ottawa for that time without work. It’s easily another $20,000 to $25,000 on top of what, for many, is around $100,000 [of] debt.”

  • The Majority Proposal only postpones a conversation that addresses the root causes of the articling crisis: the unwillingness or inability of small firms and sole practitioners to hire articling students, unsustainable enrollment increases at Canadian law schools, and the steady influx of foreign-trained NCA candidates to Ontario.

“I fail to see any benefit from this proposition. It ignores the real problems – articling as an unsustainable practice, excessive law school enrolment numbers – and just shifts the solution to more student debt. The hidden costs of adding an effective fourth year to law school are profound and reprehensible in the current cost environment of entry to the profession.”

The Minority Proposal is not ideal. However, it is preferable to the Majority’s. It is the opinion of Student Caucus, that the Minority Proposal adequately protects the public while providing a level playing field for licensing candidates, furthering the profession’s commitment to access to justice and equity. As a result, we respectfully request that the LSUC adopt the Minority Proposal.

The remainder of this memorandum closely examines elements of the Majority and Minority Proposals and identifies additional related concerns of Student Caucus.

 

A) THE MAJORITY PROPOSAL

Unfavourable Aspects of the Majority Proposal

1.      A two-track licensing system is, in fact, two-tiered and inequitable.

As recognized by the Majority, a separate but equal approach to licensing only serves to perpetuate systemic inequalities. [2] One student, echoing the position of many, remarked to Student Caucus that “the LPP will create a 2-tier articling system whereby equally qualified candidates will undoubtedly experience employer discrimination based on which training program they attend.” The potential stigmatization of LPP-licensed lawyers will divide the profession and disadvantage many new calls.

Furthermore, the Majority approach will have disproportionately negative effects on licensing candidates who are members of equity seeking groups – students who are already disadvantaged under the current licensing regime. One student noted that the Majority Proposal is a two-tiered system “which will perpetuate basic inequities in the legal profession.” The same student opined that the reputation of the Law Society would suffer “when a disproportionate number of LPP students are found to be minorities, racialized groups, etc.” The LPP will perpetuate the systemic disadvantages that already face students from equity seeking groups. This approach unfairly stigmatizes members of historically disadvantaged groups in the infancy of their careers for failing to secure paid articling positions.

2.     Increasing licensing fees will magnify socio-economic barriers to entry into the profession.

Students are entering and leaving law school with historically high levels of debt. Increasing licensing fees increases student debt which, in turn, reduces diversity in the legal profession and restricts access to justice by increasing the downstream cost of legal services. Furthermore, additional fees negatively affect students considering a career in social justice: “Most of us are in debt. Personally, I’m going into social law, where I won’t make a lot of money. The thought of supporting this program is frustrating to me.” Despite advances in the remote delivery of curriculum, students remain concerned about possible relocation costs if the LPP is offered only in Toronto and Ottawa.

Students are divided as to whether or not the costs of the LPP should be borne by all candidates entering the licensing process. Some believe it is unacceptable to expect students who have secured articling positions to pay for the LPP, while others agree that the costs of licensing should be shared by all candidates, particularly those who are gainfully employed and best able to pay. This difference of opinion further suggests that a two-tiered licensing system will divide the profession and stigmatize students unable to secure an articling position.

3.      The Majority approach postpones or defers dealing with the underlying causes of the articling crisis.

Articling reform must seek to minimize the racialized, gendered, and socio-economic inequalities and inequities that are underlying and prevalent factors in the articling crisis. Law school and the licensing process should be student-centric – focusing on student learning and skills-development – rather than increasing enrollment solely for the purpose of growing law schools. The skills acquired during articling can be developed at law school through the implementation of mandatory practical and experiential learning programs. These programs provide important hands-on experiences and help ensure that new calls are confident and competent lawyers.

There is reason to believe that firms, operating as businesses, will have little incentive to hire articling students if the LPP existed as an alternative. This would increase the number of students entering the LPP, which would further increase licensing fees.

Furthermore, the Majority fails to address most of the problems it identified with the articling system,[3] a system it recommends continuing.

4.      It is unclear how those who are licensed through the LPP will be received if they decide to practice in a jurisdiction outside of Ontario.

Students are concerned that legal professions outside Ontario might not recognize the training candidates receive through the LPP.

Favourable Aspects of the Majority Proposal

The LPP would alleviate students’ fears of being unable to become licensed after 3 years of legal education. The LPP would ensure that all law school graduates are able to practice law in Ontario, assuming other licensing requirements are met.

B) THE MINORITY PROPOSAL

Favourable Aspects of the Minority Proposal

1.   The 2-3 month pre-licensing program levels the playing field for all law students.

The one-track licensing process advanced by the Minority ensures that all students start their careers on an equal footing. The Minority Proposal eliminates the prejudicial effect a two-tiered licensing system might have on equity seeking groups. The effect of the Minority Proposal is to further the legal profession’s commitment to equity and access to justice.

2.    The Minority Proposal puts less financial strain on students.

Unlike the Majority, the Minority Proposal does not download the cost of a solution to the articling crisis onto students. The proposed pre-licensing program is shorter than the proposed 8-month LPP, allowing students to start their careers earlier. A pre-licensing program would not require students to relocate to Toronto or Ottawa, further reducing costs.  In passing, law societies in many common law jurisdictions – like in the United States, where the JD is also a second-entry degree – are able to protect the public without relying on a 10-month articling program.

Unfavourable Aspects of the Minority Proposal

Students are concerned that if articling were abolished it might reduce the willingness of law firms to pay students’ licensing fees. Abolishing articling would reduce mentoring and experiential education opportunities for students. However, as already mentioned, lawyering experiences can, and should, be delivered through the law school curriculum.

C) SUPPLEMENTAL POINTS AND CONCERNS

1.   Insufficient time to respond to the October 25, 2012 report

Although the Law Society should be credited for webcasting its most recent convocation, given that students are critical stakeholders in this debate, students felt that there has been inadequate time for consultation. The November 12, 2012 deadline to submit responses to the Pathways Report and October convocation left little time to solicit feedback from students, especially as this season in the academic year includes reading week for upper year students, in-firm interviews, and exam preparation. Irrespective of the outcome of the November 22, 2012 convocation, students believe that further options should be considered and request a voice in deliberations and the implementation of any new program.

2.    Law school enrollment and international accreditation

While it is understood that law school enrollment is beyond the regulatory powers of the LSUC, students believe this issue must be revisited. The LSUC, in its broader management of the profession, should open a dialogue with law schools to determine what enrollment numbers are sustainable – an issue at the heart of the articling crisis.

Secondly, it may be in the interest of the profession to analyze the actual impact of foreign-trained law students coming to Ontario at the early stages of their careers. Can the number of entry-level NCA candidates be managed without restricting access for experienced foreign-trained lawyers immigrating to Canada?

These are larger issues that the LSUC appears unwilling to address. However, in our opinion, these realities must be faced if the articling crisis in Ontario is to be fully resolved.

3.   Alternative ways to pay for the licensing of lawyers

Students recognize that implementing a new licensing regime will involve many risks and, possibly, new costs. The question is, as always, who should pay? Could licensing fees be carried by a combination of students and all practicing lawyers? Expanding the base of payers would have the advantage of lowering costs for those least able to pay – highly indebted students. Again, this alternative was not sufficiently considered in the Pathways Report.

CONCLUSION

The Majority Proposal should be rejected because it creates a two-tiered licensing system – separate, but not equal. Furthermore, it adds financial stress to already indebted students in a way that will reduce diversity in the legal profession and restrict access to justice and lawyering in the public interest. Finally, because students are critical stakeholders in this debate and have a unique and vital perspective, the LSUC is urged to consider student responses carefully when deciding the future of the legal profession in an area that directly impacts emerging and aspiring lawyers.

 


[1] Ontario, Law Society of Upper Canada, Pathways to the Profession: A Roadmap for the Reform of Lawyer Licensing in Ontario, Final Report (Toronto: Articling Task Force, 2012) at para 209.

[2] Ibid at para 85.

[3] Ibid at para 66.