Proponents of the Law Practice Program are reeling from a Law Society of Upper Canada report that recommends ending the alternative to articling.
The LSUC report said the LPP should be scrapped because of a perception it has created a second tier of candidates, while acknowledging that there is no evidence “to suggest the LPP is in fact second-tier.”
Chris Bentley, the executive director of the Ryerson University LPP program, criticized the report, saying it suggests that perception trumps evidence.
“The law and justice insist that evidence triumphs over perception,” he says. “So that report proceeds from a flawed foundation.”
The report’s authors, however, have said that the licensing process needs to be “fair and defensible,” and that it’s a concern if LPP candidates do not perceive it as such.
In response to the report, Noel Semple, an assistant law professor at the University of Windsor, said he struggled to understand the committee’s rationale.
“A regulator ending the LPP because it’s perceived as second tier to articling is like a regulator banning Chevrolets because they are perceived as second tier to Cadillacs,” Semple wrote.
“A regulator which does so must, at very least, have a realistic plan to ensure that everyone will be able to drive a Cadillac/get an articling position.”
The program was approved in 2012 as a three-year pilot that would later be assessed. It was originally proposed as a five-year project, but it was later cut down over fears it would become “entrenched,” before Convocation had the chance to analyze it.
The report commended the work of the program providers, but said that there was a perception among a large majority of LPP candidates that they belonged to a lower tier. The report found that 62 per cent of candidates in the LPP’s first year said the program was not their first choice. In the second year, 73 per cent said the LPP was not their first choice.
But proponents say the fact that these students were not able to find articling positions was the whole reason to create the program in the first place.
“Whenever you set something up as a pilot, people are going to be looking at it differently,” Bentley says.
“We’ve been judged to a higher standard than the traditional path. People ask questions of this that they never ask of the traditional path.”
Semple said that eliminating the LPP without first setting up another licensing alternative would cut out a path for disadvantaged candidates.
“LSUC should fight this inaccurate perception, not surrender to it,” Semple said. “But even if they can’t or won’t fight it, a professional path perceived as second tier is better than no path at all.”
Peter Wardle, chairman of the Professional Development and Competence Committee, which issued the report, was not available for an interview, but he has stressed the report’s recommendations will not be the end of the conversation about how to reform licensing.
The report recommended exploring an abridged three-month version of articling for students who complete skills training in a law society program. The committee is also recommending to replace the bar exam with two new tests that would be implemented for 2018-19.
While the majority of the committee’s members felt they had enough information to move ahead to make a determination on the LPP’s future, the program’s providers have also criticized the fact that the committee made the recommendation based on less than three years worth of data.
“I would have thought a three-year pilot would be analyzed on three years worth of statistics and really what we have for the most part is a partial look at one year,” Bentley says.
The francophone program — Programme de pratique du droit — which is administered by the University of Ottawa, requested that different indicators be developed to analyze the French program. But to their disappointment, the programs were evaluated together.
“It was all aggregated and our hope was that it would be disaggregated,” says Lise Rivet, a co-director of the uOttawa program. Administrators have stressed that the program helps to plug a legal gap for the Franco-Ontarian community by helping to license more French-speaking lawyers.
“I think that it would have been very helpful for the benchers to look at and survey the francophone community to see their perception of the French LPP,” says Anne Levesque, a co-director of the francophone program.
“We’ve received nothing but overwhelming support.”
The law society could not provide a break down by provider of the percentage of LPP candidates who chose the program as their second choice, but information gathered by the University of Ottawa through surveys found only 12 per cent of its candidates in its first two years chose the program because they could not get an articling position.
“You don’t see the French program in the data,” Levesque says of the committee’s report.
The report also said the LPP programs are simply not financially sustainable as there has not been large enough interest by candidates. There were only 440 candidates in the first two years combined in the English program and 28 in the first two years of the francophone one.
Levesque, however, says training in a minority language to a smaller number of people obviously costs more, and the law society negotiated the program fees at its inception.
“Our numbers are growing,” says Levesque. “When there is a new program, there is always time to build up the sustainability.”
Opponents have argued that the LPP is costly for both its own candidates — some of which had unpaid placements — and articling candidates who have seen their own fees increase to help pay for the alternative program.
Some have suggested offsetting the cost of the LPP through increasing fees to practicing lawyers rather than pushing that cost on to candidates who are not in the LPP and are likely saddled with their own student debt. Convocation will vote on the recommendations issued in the report in November.