Slaw.ca Legal Ethics Column, July 27, 2018.
What should people who want to practice law have to do before they are licensed? This perennial debate has bloomed once again. The Law Society of Ontario (LSO) is seeking feedback on its Options for Lawyer Licensing consultation paper (Slaw summary here). Two of the LSO’s four options would abolish articling. Candidates would instead have to pass exams covering both legal skills and substantive knowledge. There would also be a law practice program, either required for all candidates (LSO’s Option 4) or only for those practicing in smaller firms (Option 3).
Thinking of licensing in terms of footbridges over a chasm may help clarify what is at stake, and why the LSO should in fact abolish the articling requirement.
Bridges over the Chasm
A licensing regime creates a legal chasm. Aspiring legal professionals start out on one side. The people and corporations who would like to receive their services stand on the other side. Disregarding the chasm means falling into the “unauthorized practice of law,” a sharp set of rocks maintained by the law societies.
Licensing creates bridges over this chasm. Those who successfully cross the bridges are allowed to serve the clients waiting on the other side. To complete the traditional (and still dominant) domestic path to a full lawyer license in most provinces, one must:
- forego seven years of income and time to obtain the necessary university degrees;
- typically pay $90,000 or more in combined undergraduate and law school tuition;
- achieve strong LSAT and undergraduate GPA scores
- pass licensing exams, and
- find an articling position and complete articles.
Canada’s licensing footbridges are narrow and arduous, relative to those of most comparable countries. For example, only one university degree (not two) is required in countries like England and Australia. In the United States the LSAT scores and GPAs necessary to get into an accredited law school are much lower than they are here. Finally, mandatory apprenticeships akin to articling are very rare abroad.
What’s at Stake in Licensing Design?
Suppose you are asked to design licensing footbridges from scratch. What considerations would guide you? That such decisions should be made in the “public interest” is uncontroversial, but what does that mean in this context?
Client interests generally have pride of place within the public interest. Ensuring the baseline competence of licensees to practice law is job #1, as Malcolm Mercer explains. If the bridges are insufficiently challenging, candidates will be able cross them without demonstrating or learning enough of what is necessary in order to be competent practitioners. They could do serious damage to the clients on the other side of the chasm. Quality beyond baseline competence is obviously also desirable, and licensing requirements can also serve this goal.
Quality isn’t Everything
However the public interest involves more than just the client interest in quality. Clients also have interests in service price, and in having a broad range of choice in the market. The interests of licensing candidates — especially those who have already invested many years and dollars in efforts to cross the licensing chasm — must also be protected as much as possible in the design process.
Every time you, as designer, make the licensing footbridges longer or harder to cross, several bad things can happen:
- First, some people who would become excellent lawyers are deterred from trying to cross the chasm. Many people of modest means would be willing to spend four years and $40,000 in order to become a lawyer (as in the UK), but would balk at eight years and $90,000 plus a mandatory apprenticeship requirement (as in most Canadian provinces).
- Second, the more onerous the licensing requirements are, the more debt and the more foregone income those who do succeed in crossing the chasm will have when they begin serving clients.
- Access to justice therefore suffers as licensing becomes more onerous. Service prices are higher due to increased practitioner debt and reduced numbers of practitioners. There are many thousands of people on the far side of the licensing chasm, who would like to be clients, but cannot afford the rates charged by the select group of licensees who succeed.
- Equity-seeking candidates may be especially disadvantaged. Less affluent people from less privileged backgrounds are more likely to be deterred from legal careers by expensive and arduous licensing requirements. Thus, longer and more arduous licensing footbridges make it more difficult to achieve professional diversity.
- To the extent that lawyers from disadvantaged or equity-seeking groups are more likely to serve clients from those same groups, the people deprived of affordable assistance may be those who need it most.
Building Better Footbridges
The key question for licensing design is: how can we “buy” large and consistent quality benefits for candidates and their clients, for the lowest possible cost in terms of candidates’ money and time? Licensing reform that makes it easier to cross the chasm, without any deleterious effect on quality, is good for both clients and candidates. In two commendable recent reforms, the LSO has (i) decided to give paralegals practice rights in some family law matters, and (ii) created alternative pathways to licensure (the Law Practice Program and the Integrated Practice Curriculum). Both decisions created new footbridges across the chasm. Both decisions make it easier for a group of aspiring legal professionals, who are more likely than articled lawyers to be racialized and equity-seeking, to have satisfying careers helping people. They should also produce access to justice benefits, by giving clients access to a new and more affordable class of licensed practitioners.
Exams and practice programs can be designed to optimize their cost-benefit profile for candidates and the clients they will serve. Surveys of practicing lawyers, analyses of complaints data, and emerging methodologies for measuring legal service value can be used to identify baseline knowledge and skills. The risks arising from legal practice can also be identified and quantified.
Practice programs and exam questions can then be calibrated to inculcate the most important skills and knowledge, and minimize the gravest risks. The passing score on a licensing exam or practice program can be set at the level where further increases would have costs greater than their benefits. They can also be calibrated for the context in which different groups of candidates will practice. LSO’s Option 3 reflects this insight, by prescribing a law practice program only for the category of licensees (small and solo practitioners) thought to need it most. On the other hand, Option 4’s premise that all licensees need these skills may also be defensible. The decision between Option 3 and Option 4 should be based on a thorough empirical understanding of real law practice and the value that the law practice program offers to different candidates.
How does articling look from this point of view? The question is not whether people will still begin legal careers by doing the sorts of things that articling students do today. Undoubtedly they will. The question is whether regulators should require some or all candidates to find and complete articles before granting them a license to practice where and how they wish.
The effect of the articling requirement in fostering candidate quality is questionable. The nature of articling depends on the lightly-regulated decisions and resources of articling principals, so it is necessarily inconsistent. In a worryingly high proportion of cases, the articling requirement subjects candidates to harassment and unprofessional conduct. This may be due to the power imbalance created by the articling principal’s status as gatekeeper on the licensing footbridge. Because offering articles is a voluntary decision made by firms, success in obtaining a position can depend to a large extent on factors beyond the candidate’s control, such as racial prejudice and market conditions.
Even articling programs that succeed admirably in preparing one to practice in the particular context of that firm may do very little to prepare the candidate to practice in other practice contexts. It is true that articling is “real world” experience and a law practice program’s world is simulated, but the “real world” in which one articles doesn’t necessarily bear any resemblance to the real world in which one will practice. A simulated world can be designed to develop the skills that are most essential in all of the disparate real worlds of law practice today.
Licensing is here to stay. That means there will always be a chasm between people who want to provide legal services, and the people who are ready and willing to pay for those services. It is very important to design appropriate footbridges across the licensing chasm. They must maximize the quality, price, and choice interests at stake. Articling, as a regulatory requirement, is haphazard and arbitrary and therefore inappropriate. The Law Society should abolish it, in favour of well-designed and evidence-based alternatives such as exams and the law practice program.
 There are a few alternative footbridges over the chasm. These include Ontario’s LPP and paralegal pathways, the National Committee on Accreditation process for foreign-trained lawyers, and Quebec’s notarial profession.