Executive Summary
The Law Society’s Articling Task
Force was formed as a result of broad concern about a shortage of articling
positions in Ontario. The key
message of this submission to the Task Force is that the most significant
challenge facing the professional licensing system in Ontario is not a general
shortage in articling positions.
Rather, there is a specific shortage of access to justice-oriented articling positions and, in turn, a
shortage of pathways to careers in access to justice-oriented lawyering.
This submission supports
proposals for reforming the professional licensing system to take account of
the general shortage in articling positions and, more broadly, to address
concerns over fair access to the legal profession. We submit, however, that priority should be given to those
proposals that would ensure that the reformed system makes a significantly
greater contribution to improving access to justice in Ontario.
The need to prioritize reforms
that improve access to justice arises from the Law Society’s own statutory
mandate. Specifically, section
4.2.2 of the Law Society Act, RSO
1990, c L8 states that “[t]he Society has a duty to act so as to facilitate
access to justice for the people of Ontario.” In addition, the Canadian
Charter of Rights and Freedoms applies to the Law Society and the s. 15
guarantee of equality would clearly require the Law Society to eradicate
inequality in access to articling positions and also, arguably, requires the
legal profession to bear the primary burden of ensuring equality of access to
legal services.
It is now generally accepted
within and beyond the legal profession that Ontario has a significant problem
of lack of access to justice. This
has been bolstered by recent empirical studies that quantify unmet legal needs
in relation to so-called ‘everyday legal problems’. The general problem of lack of access to justice is
principally caused by the reliance on private market forces to deliver legal
services. Significant numbers of
people cannot afford private market rates but, at the same time, do not qualify
for legal aid or public legal services because those sectors are underfunded
and eligibility criteria are tight.
This situation is then exacerbated by the ‘greying of the bar’, which is
expected to lead to a net decrease in lawyers serving everyday legal needs,
especially outside the main urban centers.
The current operation of the
articling system contributes to the lack of access to justice in that there are
only a small proportion of articling positions available in public or private
settings serving everyday legal needs.
This means not only that the relatively cheap labour of articling
students is not being harnessed to improve access to justice but also that law
graduates have only a very limited pathway to careers in access to
justice-oriented lawyering. The
main cause of the shortage of access to justice-oriented articling positions
appears to be the economics of sole and small firm practice (who are the main
providers of legal services for everyday legal problems) – too few can afford
to offer articling positions. At
the same time, would-be articling students are leaving law school with
significant debts, which affects their ability to freely choose among articling
opportunities and acts as a disincentive or outright barrier to accepting
low-wage positions. As well,
far too few articling positions are offered in legal clinics and by government
departments and agencies, considering the numbers of lawyers practicing in
those sectors. In addition, the persistent
(and apparently worsening) disproportionate under-placement of equality seeking
group members in articling positions raises issues of discrimination,
inequality and access to articling which need to be addressed in their own
right (and may also contribute to unmet legal needs in corresponding
communities).
In our view, in considering
reforms to articling, and to the professional licensing system more generally,
the Law Society ought to give priority to those reforms that will do the most
to improve access to justice. However, in our assessment, some of the Options set-out in
the Consultation Report will not make any contribution to improving access to
justice to any meaningful extent and other Options will only do so if
explicitly designed with that objective in mind. Ultimately, this is because the Options do little, if
anything, to avoid or address the economics of legal practice or student debt
loads. Specifically:
- Option 1 (the status quo) and Option 2 (status quo with improved quality assurance), will not alter the present circumstances of lack of access to justice;
- Option 3 (post-licensing transition requirements) is noteworthy for proposing a targeting of transition resources towards the small firm and sole practise sector – which serves everyday legal needs – but could not be expected to make more than marginal increases to the size or accessibility of this sector, unless combined with more robust systemic measures;
- Option 4 (practical legal training course (PLTC) as alternative to articles) would require registrants to pay significant fees, and may reduce concern for existing discriminatory hiring practices, and so runs a grave risk of exacerbating discriminatory barriers to entry to the profession. In addition, a generalist PLTC, involving only simulated practice, would make no contribution to access to justice. However, if PLTC were targeted at everyday legal problems, and involved ‘live-practice’, then it could offer some systemic access to justice improvements. At the same time though, post-PLTC, market forces would still predominate, thus limiting the scope of these improvements to the relatively limited scope of the ‘live-practise’ component of the PLTC.
- Option 5 (PLTC only) raises similar concerns in terms of barriers to entry as Option 4 and, if generalist and simulated, may worsen access to justice by taking away the articling labour that presently serves everyday legal needs. In contrast though, if targeted at everyday legal problems and involving ‘live-practise’, it may provide even greater access to justice benefits than Option 4.
Given the imperative of
prioritizing improving access to justice, and the inadequacies of the proposed
Options, our view is that the Task Force and Law Society need to make a more
concerted effort to identify and establish initiatives that can increase
delivery of legal services for everyday legal problems. This means that the Society needs to
identify initiatives that either modify the market constraints or use
non-market methods, or both. At
the same time, these initiatives need to be systemic and sustainable – Ontario
needs a significant increase in access to justice both immediately and over the
long term.
Re-design of professional
licensing could make a systemic and sustained improvement to access to justice
either by providing a means for the skills and labour of new law graduates to
be directed to everyday legal problems during articling or by employing newly
admitted lawyers in a non-market-based service provider system for everyday
legal problems, or by some combination of both. In this submission we outline a number of options along
these lines – all of which either modify market constraints or establish
non-market methods. Specifically:
- Imposing a levy on lawyers to fully or partially fund the creation of upwards of 200 access to justice articling positions that could be undertaken in small firms, sole practises, clinics, non-governmental organizations and government departments and agencies;
- Establishing a civil law mega-clinic program, providing services for everyday legal needs throughout Ontario;
- Initiating and enhancing debt-relief, hiring incentives, practice supports and regulatory changes to facilitate entry into access to justice positions and careers;
Some of these options would
represent a significant improvement in access to justice in their own right,
while others would only be effective if part of a package of initiatives.
A final consideration for
the Task Force is the inclusiveness, feasibility and timing of articling
reform. Any changes to articling
and professional licensing can be expected to have significant direct and
ripple effects on all aspects of the legal system, including law schools. Indeed, some proposals contemplate
specific changes to law school programs.
The Law Society needs to ensure that meaningful feasibility studies are
undertaken of all proposed changes and that all stakeholders, including law
schools, have an opportunity to participate in developing and assessing
options. It may be prudent to
consider pilot programs as well.
Also, curriculum change in Universities is a serious matter subject to a
rigorous and time-consuming review process – three years is not unusual. Therefore, while access to justice is
an immediate imperative, reform must be pursued systematically, inclusively and
on an appropriate time horizon.
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