One of the problems from which we suffer as a profession is a problem of institutional inertia. And it is only getting worse. The most critically minded, insightful and grounded critiques of the licensing process are embodied within the “new calls”: the most disenfranchised, debt-burdened and financially vulnerable segment of the profession. However, no sooner than licensees emerge from the depths of the bar examination and a 10-month stint doing something related to law (called articling) do they begin to struggle to assimilate within the hierarchy of legal professionalism. The previous year is then relegated to the dustbin of bad memories and the cycle is set on repeat for a new cohort of lawyers in training.
Perhaps we experience collective institutional amnesia upon entry into the profession. The fact of our emergence through adverse circumstances ironically becomes conflated with a sense that the experience was necessary and must necessarily be replicated for future generations. While there is comfort in the familiar, any cursory examination of the landscape of legal practice in Ontario today reveals that it is so rapidly shifting that the traditions of the licensing regime have become obsolete.
Consider articling. Ten months doing research or real estate transactions or family law (or basically anything) is considered to do the trick for checking the box of practical experience. No two experiences are the same and no articling term is audited to assess standard features or requirements. The net result is that there are myriad possibilities of varying experiential outcomes that are treated in a similar fashion, but they may have no common features, subject matter treatment or law practice exposure. Articling is an antiquated institution.
Experiential learning, which is, in theory, the essence of articling, is already being embodied within the law schools. However, the uneasy decades-old truce between the LSUC and law schools suggests that law schools cultivate legal academics, while the law society merely regulates but does not train lawyers. The reality belies this institutional divide.
A law student cannot be neatly separated from a licensing candidate, nor is the former a completely disparate being from a lawyer. Experience is experience — wherever it can be gained. The quandary is that the experiential learning ground of articling lacks the pedagogy, structural benefits and oversight offered during law school.
The Lawyers’ Practice Program, which was placed on the chopping block by the LSUC last fall prior to the completion of its pilot test, represents a modicum of compromise between standardized training and controlled experiential learning. To its credit, in October 2016, the law society did not terminate the LPP; however, the fact that it was slated for termination is an indication of the short-sightedness of our regulatory body and the bottom-line financial motivations for its decision-making.
To recall, 15 years ago, all licensees had in-class sessions and practical exercises in addition to articling. While the process was somewhat lacklustre (in contrast to the current dynamism of the LPP), it should be noted that in-class teaching was standard issue to all licensees across the board.
Today, the mainstream licensing pathway has retreated considerably from the model of more than a decade ago in conjunction with the proposed advent of a new “super” multiple-choice examination — the PPE. Whether the PPE — or Practice and Procedure Examination — that was proposed by the LSUC last year to combine both the barristers and solicitors examinations would save even more money in lower administration and marking fees than the battery of nine examinations administered in days of yore is thought-provoking, but it also misses the point.
The danger is that we may have acquiesced to the fact that there needs to be a sifting process to separate the wheat from the chaff. But, as a profession, we need to care about how new lawyers are being prepared and how they will emerge to meet the growing challenges of legal illiteracy, access to justice and geographic and social disparity in legal services.
The answer to creating a more robust, socially responsive, relevant and experientially grounded licensing process means first we have to care about the profession. That is, lawyers need to actively challenge, advocate and help shape better standards for licensing while calling on the LSUC to explicitly take a role in lawyer training, not simply regulation of professional standards. But getting a better training system on its feet, such as an expanded and standardized single LPP pathway, for example, will cost money. Are LSUC members prepared to accept a modest fee levy to help fund this training? Have we even queried whether the law society itself could mobilize to raise the funds through other budgetary means? Or should we stick with the current LSUC model of tying the burden of learning to the licensing candidates themselves by massive increments in licensing fees?
These quandaries appear to reveal a crisis in measuring the economic value of training. However, the LSUC’s reticence toward lawyer training does not exist in a bubble; it is reflective of our collective professional failure to own and to actively participate in the development of the future of our profession. It is in fact a crisis of our professional values. The decision of how to address it is yours.
Yavar Hameed is a human rights lawyer based in Ottawa.