Experiential learning needed in law schools

Lately, we have heard arguments suggesting that there are too many law students graduating and that’s why there’s an articling crisis.

Lately, we have heard arguments suggesting that there are too many law students graduating and that’s why there’s an articling crisis. Indeed, that’s the justification that the Ontario government gave just this week when it rejected funding for Ryerson’s proposed law school. But how could there be too many law students when there are not enough lawyers and when there is an access-to-justice crisis? Here’s an idea.

Maybe, it’s not the number of law students that’s out of control.  Maybe the problem is the burden faced by new lawyers — skyrocketing tuition fees, creeping licensing fees and crippling debt for new licensees. To this end, I would like to suggest that the way forward is increasingly to move toward placing experiential learning within law schools with a view to getting rid of articling altogether. 

By incorporating articling into law schools, we could help solve the articling crisis.  We could also be responding to the access-to-justice crisis by helping to educate and train more lawyers capable of responding to chronically underserviced, remote and marginalized communities.  

Interestingly, the ongoing LSO Dialogue on Licensing has suggested various options for licensing models/approaches, but none has sought to either rely upon law schools to provide experiential learning or fold articling into law schools. This notable absence epitomizes the legal academic-professional golden handshake that has orphaned articling to be left to the whim of market forces.

At a recent debate at the University of Ottawa responding to the LSO’s Dialogue on Licensing where I participated as a discussant, one of the really hot button topics of the afternoon was the suggestion that experiential learning could happen within law schools. One law school dean categorically insisted that it was not the mandate of the law school to create practice-ready lawyers.

Technically, I agree that the law schools don’t have that role currently, but I wonder whether it is the responsibility of law schools — in collaboration with the law society and the private bar — to dedicate themselves to the task. Here, I have three thoughts for you to consider. 

Firstly, law schools are already set up for this. Some law schools have arrangements with local clinics, firms and even government departments to provide law students with experiential learning opportunities that will prepare them for practice. These positions are not that different from articling itself.

For example, in my own practice, I frequently take on a law student through the University of Ottawa’s “Student Proposed Internship” program through which the student receives course credit.

They learn to write factums, prepare arguments, interact with clients and witnesses, file documents — any number of things that an articling student would also do. 

Secondly, you have to wonder why the JD is known as a professional program.  Students, invariably, expect to go to law school to become lawyers. Not everyone has such a goal, but it is a reasonable conclusion that a very sizeable proportion of law graduates seek to practise law.

However, every single articling student I have supervised in the last 13 years has noted that law school did not prepare them for practice. Why call it a professional program if you don’t intend to graduate professionals? What law deans and others are thinking of already exists — LLMs and PhDs. The purpose of a JD program is to produce practice-ready lawyers. Could we imagine any other professional school making a similar claim — a school of social work, nursing, medicine or accounting?

Thirdly, by using the law school as a platform for experiential learning, the articling crisis is effectively averted by allowing every law student the possibility of entering the practice of law. Innovative, practice-based models of law schools can be used that help to respond to community needs. I know what you are also thinking: Once the floodgates are open, every existing lawyer, the billable hour and the future of our profession as we know it will be in peril.

Reality check — most people already cannot afford high-priced legal services and age-old methods of practice are being technologically phased out. Our challenge is to figure out new innovative solutions that incorporate technology, respond to community needs and enhance public access to affordable and competent legal services. 

And what about the competency of these newly minted “practice-ready” lawyers from law school? Is the LSO going to be up to its elbows in professionalism complaints? I don’t think so. Generally speaking, new lawyers are both cautious and conscientious; certainly much more so than the cases we hear about corrupt seasoned lawyers who deliberately exploit clients after years of practice.

Under the current licensing model, students who have passed licensing requirements, including the barristers and solicitors examinations, are not practice ready because they have written the exams — they are deemed practice ready. The shared responsibility of law schools and the LSO must be to move away from deeming readiness toward ensuring readiness of new lawyers. 

The current situation that exists, in my opinion, between law schools and our professional regulator that ensures a profoundly self-interested and shortsighted separation of institutional powers between academic and professional law must give way to a collaborative, fair and relevant training method that seeks to truly prepare new licensees in a transparent, standard and effective way. Articling is a dying institution and it is willful blindness for law school brass to think it is not their problem.

Yavar Hameed is a human rights lawyer based in Ottawa.

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