Where have all the articling students gone? Well, they haven't gone into criminal defence work. Times are tough in Ontario these days for anyone wanting to enter the criminal bar.
The scarcity of criminal defence articles is directly related to deficiencies in the Legal Aid Ontario tariff. Although the tariff ostensibly recompenses a student's time at one-third of a junior lawyer's time, the hours permitted are limited, and most of a student's time is not billable. The additional problem of not having had a recent tariff increase only compounds matters.
Inquiries for jobs for articling students are increasingly frequent and urgent. Some applicants send letters; others, more desperate, phone or send e-mails. There really aren't many jobs out there.
In Ottawa, where there were over 130 lawyers practising criminal law last year, there were only four students who had general criminal articles. In the early '90s, before the legal aid cuts, there were between 15 and 20 a year. If you ask criminal lawyers why they do not have a student, they will flatly tell you they cannot afford one.
With an aging bar, this does not bode well for the future, and problems have already arisen as a result of the dearth of trained junior counsel. We are now seeing a considerable number of people entering private practice who have never touched a criminal file.
Earlier this year I had a call from our local Legal Aid area director — would I mentor someone? I immediately said yes, as I like to help. But then I went home and thought about it. Why does Legal Aid need lawyers in private practice to mentor? Will I be paid? (No.) Would my insurance cover this? (Probably not.) Will I have to read entire files to help them prepare Charter arguments? (You bet.)
Those of us who have mentored know how much work it entails. It is best done within one's own office, and requires nearly daily contact.
So what is going on? Why is legal aid asking the private bar to take this task on?
If you go to the Legal Aid Ontario web site (www.lao.on.ca) you will see this fall there will be standards for lawyers taking criminal and family law cases. Standards were implemented last year for refugee work.
New lawyers will not be able to accept criminal certificates unless they meet the Criminal Law Panel Standards. In general, the minimum experience is 15 criminal files completed in the previous year, including three contested trials, preliminary inquiries or appeals, and a 20-per-cent concentration in criminal law in the previous two years and on an on-going basis.
For other lawyers, exemptions must be obtained. If the new lawyer has had "substantial articling experience" with a "recognized" criminal lawyer, he or she is exempt. An exemption can also be obtained by signing an agreement to acquire the minimum related experience within two years, to attend training courses as specified by the director, and to be mentored for a specified period of time by an approved criminal practitioner.
In response to this, the Defence Counsel Association of Ottawa is setting up its own mentoring program. The DCAO has long used some tables in the cafeteria at the courthouse for this purpose on a very informal basis. You sit down, get some advice, and get to know the bar.
It is quite another matter to take someone else under your wing, so the DCAO has invited each lawyer with more than eight years' experience to agree to take on one new lawyer. There will be an agreement to limit liability and LawPRO is expected to waive any deductible.
Mentoring in a formalized way will now be going on throughout the province, but Legal Aid Ontario knows there are areas where it will not be feasible, and online mentoring with advice from a rotating roster of lawyers will be offered within a 48-hour time frame.
The LAO web site notes that the criminal law panel standards shall apply across Ontario, but may be applied in a flexible way to meet local conditions.
It is one of the best traditions of the bar to mentor, and we have all gratefully been the recipients of advice throughout our careers. However, something must be done to make criminal articles a reality again. It is unseemly to take on an articling student for free, and, sadly, some young people offer to work on that basis.
The legal aid plan needs serious re-jigging and increases to put new people into the system who will keep the bar vital, unless, of course, we are going to be like Blanche Dubois who "always relied
Rosalind Conway practises criminal law in Ottawa. She can be reached via e-mail at firstname.lastname@example.org