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Speaker's Corner: Prof urges pause on allowing more schools to follow Lakehead approach

Ontario appears set to get more lawyers due to reforms to the rules governing entry into the profession.

This may mean more competition, lower rates, and greater access to justice. Alternatively, Ontario may come to resemble U.S. states where lawyers are plentiful and ambulance chasing abounds.

In Canada, access to the legal profession was long regulated in two main ways. First, students became lawyers only upon admittance to a Canadian law school. Second, law school graduates had to article before they could join the profession.

For decades, law school enrolment was stable or even in decline relative to population growth. Lately, that has changed. Some Ontario law schools have increased enrolment, presumably to grow their revenues in the face of declining public funding and a provincial tuition freeze.

More dramatically, the number of foreign-trained students accepted by Canada’s law societies has risen rapidly to 730 in 2012 from 260 in 2009. Most of these students appear to have been round-trip Canadians who went abroad for law school, often at significantly higher cost than in Canada. Also, new immigrants to Canada who trained abroad as lawyers have sought legal work in Ontario and have sometimes pressed for reforms to facilitate their entry. In 2006, the province introduced the Fair Access to Regulated Professions Act (the first of its kind in Canada) and, in 2009, the government gave $4 million to the University of Toronto to help new immigrants with legal experience become lawyers in Ontario.

Predictably, this growth put pressure on the other main regulator of entry to the profession: articling. Law firms can only accommodate so many students each year and the number of unplaced applicants rose to almost 15 per cent in 2013 from about six per cent in 2009.

In response, one option for the Law Society of Upper Canada was to let the market sort things out based on the established rules. One might assume students would stop attending law schools, abroad or in Canada, whose graduates had a poor record of getting articling positions. Likewise, foreign lawyers who expected to practise law in Ontario without extensive further training might conclude that was unrealistic. On the other hand, markets aren’t perfect and the individual and political costs of market correction can be high.

Instead of leaving it to the market, the law society has signaled it’s willing to liberalize access to the profession by phasing out articling, albeit in a roundabout way. In November 2013, the law society approved a parallel training program that will allow law school graduates to qualify for the profession based on further (costly and unpaid) in-class training and placements instead of (paid) articles.

More significantly, the law society has relieved graduates of the new law school at Lakehead University from the articling requirement. That is, it has preapproved future Lakehead graduates for access based on the usual three years of law school study.

When the Lakehead approach emerged, some people promoted it as a regional solution to provide more lawyers in northern Ontario and remote communities. It has now become clear that the law society may accept Lakehead as a model for other institutions and that all schools will face pressure to seek fast-track eligibility for their own students.

In time, we can expect all sorts of law schools in Canada and abroad will be able to produce ready-made lawyers for Ontario. The only remaining filter on access to the profession would be the law society’s bar exams. In Ontario, those exams have a fail rate thought to be less than 10 per cent; by comparison, the New York bar exam’s fail rate is nearly 40 per cent. Even if the Ontario bar exams were more rigorous, Ontario will have adopted the U.S. approach.

This has potentially far-reaching consequences. For example, students would face a greater likelihood of being unable to enter the profession after — instead of before — they have invested in a law degree. Skills training for future lawyers would take place more in the abstract before trainers and students know what their career stream is likely to be. Law schools may end up with far more students whose financial resources outweigh their academic qualifications.

For the profession and the public, perhaps most importantly, more lawyers will enter the market. This may improve access to justice; it could also increase litigation and undermine quality and professionalism.

As a law professor, I always encourage bright minds wishing to study the law. But I think the law society should pause in order to examine and debate the consequences before it allows more law schools to follow the Lakehead approach. Likewise, the Ontario government needs to ensure the benefits outweigh the costs. Once the waves of ready-made lawyers start rolling in, it won’t be easy to close the floodgates, if that’s what they turn out to be.

Gus Van Harten is a professor at Osgoode Hall Law School. In 2000, he articled at the Ontario Court of Appeal.

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