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OBA warns against abandoning articles

|Written By Jeffrey H. Waugh

The Ontario Bar Association is standing firm on its position against the abolition of articling in this province, says Jamie Trimble, the OBA’s new president.

‘The overwhelming decision was to keep articling,’ says Jamie Trimble about a recent Ontario Bar Association poll on the subject.

Trimble tells Law Times, “It would not be in the public’s interest nor in the interest of the lawyers to turn them out as licensed individuals without having a practical component of their education.”

As part of their response to the task force for licensing and accreditation at the Law Society of Upper Canada, the OBA conducted a survey of its own members to gauge reaction to the suggestion of abandoning the articling program.

They surveyed two groups, based on practice age - recent calls to the bar, and those who have been practising for over 10 years. Trimble, who also chaired the OBA’s task force that prepared the response paper, says they expected to see some variation between the two groups, but the results were similar.

“The overwhelming decision was to keep articling,” he says.

Over 73 per cent of recent calls (those with 10 years or less practice experience) completely agreed that articling was an essential part of their training for the practice of law. Eighty per cent of those practising for more than 10 years shared the same view.

Trimble says his own informal polling and conversations with colleagues revealed the same result. “There are certain things that can be taught in a practical setting, in an apprenticeship-type setting, that you just cannot get in the classroom.”

Other organizations are taking a similar stance against the idea of extinguishing articling.

Peter J. E. Cronyn, president of The Advocates’ Society, confirms their board debated the issue earlier in the year. “We were unanimous in concluding that it would be a mistake to abolish articles, both for the students and the public,” he says.

The possibility of increased candidates and a shortage of articling positions “cannot be a justification to do away with such a crucial step in the process of becoming a lawyer,” says Cronyn.

New lawyers are primarily trained in three ways - law school education, the skills and professional responsibility program administered by the law society, and a 10-month articling period. The gap created by the removal of one of these components would need to be filled in some other way, say lawyers.

Cronyn suggests that an expectation for universities to fill the void is unwarranted. “The law schools over the years have made it clear that they do not want their curricula to be shaped by the regulating bodies,” says Cronyn.

He adds that the diminishing nature of the bar course leaves little room for increased training. “Articling is the only remaining opportunity for those who wish to become lawyers to learn what it means to practise law.”

The County and District Law Presidents’ Association has also filed a report in response to the law society’s call for consultations. In their report they state, “There is no substitute for the practical learning that is achieved inside a law firm.”

One criticism of the articling process is that students who work in firms with specialized practice areas lack the well-rounded quality. But Trimble says there are skills all articling students will acquire, no matter where they choose to complete their term.

“There are generic skills you learn; the business of practising law, interviewing people, client management skills, time management skills, risk management skills, insurance issues, professional responsibility issues,” says Trimble. “Those are not tied to any one part of practice.”

Trimble admits that a student who articled with him would be mainly exposed to civil litigation matters, and it’s unlikely they would ever draft a motion on family law. “But any good lawyer who takes on an articling student should be able to deal with drafting in general, corresponding with clients, corresponding with institutions,” he says. “Those are generic skills you learn from articling that you don’t learn in law school.”

All three organizations recognize the current structure of the articling program isn’t ideal, but say getting rid of it is not the solution. “Articling can’t be the panacea, but you can’t throw the baby out with the bath water either,” says Trimble. He suggests the law society look to other ways of solving the shortage of positions.

The OBA response contains several suggestions, including expanding the definition of an articling principal to allow for more people to qualify, and providing incentives for lawyers to take on articling students. Offering credit for different types of experience is also suggested, such as summer legal work or volunteer legal experience. The goal is to increase the number of available articling opportunities.

From the very beginning, Trimble says the profession needs to control expectations and make sure potential candidates know there is no guarantee of becoming a practising lawyer.

“A law education is great for a lot of things,” says Trimble. There are plenty of other options outside the actual practice of law. “They do all sorts of things that have nothing to do with the rendering of legal services for a fee.”

Trimble also poses the question of creating an alternate stream for students not able to secure articles. He assumes that would mean some sort of fee-based classroom setting, but says there are many matters needing investigation before that could become a reality.

Both the OBA and The Advocates’ Society suggest the use of incentives to encourage articling positions with smaller firms. “One idea suggested was financial assistance to sole practitioners or small firms to allow them to hire a student when they might not otherwise do so,” says Cronyn.

The CDLPA’s report suggests a hybrid model that retains the current articling program and creates an alternate stream, but also suggests an exemption from articling for those who refrain from private practice. They refer to those who work as in-house counsel or in certain government sectors.

The law society task force charged with examining the issue is expected to report back to Convocation this week.

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