Law Society of Ontario defers vote on eliminating mandatory minimum wage for articling students

Around 10-15 per cent of articling placements are unpaid or paid below the minimum wage: report

Law Society of Ontario defers vote on eliminating mandatory minimum wage for articling students
Law Society Benchers Atrisha Lewis and Alexander Wilkes

The Law Society of Ontario has put off deciding whether to nix a previously approved plan to apply a minimum wage to articling placements, which was proposed by a majority of the Professional Development and Competence Committee (PDCC).

In a two-year review of the lawyer licensing process, which began in 2017, lawyers, law students and other stakeholders raised a number of concerns with the Law Society. Among them, according to the PDCC report on Experiential Training Enhancements, was the inadequate pay of some articling placements, which created “unfair and potentially exploitative working arrangements.” Around 10-15 per cent of articling placements, which amounts to between 130 and 150 placements, are unpaid or paid below the minimum wage, said the report.

In 2018, the Law Society’s previous bench approved changes to the process, including a mandatory minimum wage. But COVID shifted Law Society priorities and the minimum wage rule – along with the other changes – was put on hold and has not yet been implemented.

On Nov. 26, Convocation voted on four measures which would replace the changes approved in 2018. The new measures were recommended by a majority of the PDCC. Three were approved. The fourth, which dealt with the minimum-wage requirement, was deferred back to committee to be addressed at a future Convocation.

“I will vote to support a minimum salary for articling students when the vote comes,” says Atrisha Lewis, Bencher and partner in McCarthy Tétrault's litigation group. Lewis says she asked for the vote to be deferred so the public would have more notice that the Law Society was seeking to reverse its previous decision.

“I think it is very important that the regulator takes steps to protect some of the most vulnerable members of the legal profession from exploitative working environments. I think it is wrong for someone to work for 10 months and not be paid. Especially in a context where they have graduated from law school and likely have significant amount of debt associated with the high cost of tuition.”

A majority of the PDCC believed the Law Society should not implement the mandatory minimum-wage because it would reduce the number of placements available, a number which has not kept up with rising demand in recent years as more lawyers enter the profession.

The committee’s minority said unpaid placements create barriers for “economically marginalized groups,” hampering diversity in the profession, as well as disincentivizing licensing candidates to pursue less lucrative paths such as family and criminal law, said the PDCC report.

“A reality that needs to be addressed is that, in many senses, the articling program is in crisis and is dying,” says Bencher and vice-chair of the PDCC Alexander Wilkes. While articling placements have not kept apace with the growth in licensing candidates – an 18-per-cent rise since 2016 – there are currently 500 candidates who have entered the licensing process in the last three years who still have not found an articling job, says Wilkes.

“Faced with this crisis in articling, prior Convocation determined the best course of action was to place increased burdens on the dwindling number of articling principals,” he says. “Most of the recommendations passed by Convocation in 2018 were deemed to be overly burdensome on articling principals and were deemed to be less appropriate than the three alternative articling enhancements passed by Convocation this past November.”

“The minimum wage debate, obviously, remains a live issue.”

Wilkes says his chief concern is that a minimum wage will harm the marginalized candidates it aims to protect. Unpaid placements typically occur when a candidate approaches a sole-practitioner who is not initially looking to take on an articling student, he says.

“While the lawyer may not be able to afford a traditional wage or compensation scheme, there is a mutuality of interest that can be beneficial for both.”

“Taking away the ability of licensing candidates to make their own decisions about whether or not to seek an unpaid placement will obviously have the most impact on those who are unable to secure a paid placement,” says Wilkes. “The choice for that candidate goes from being between an unpaid articling position and the LPP, to having no choice at all, with the LPP being the only option for the candidate to move forward with the licensing process.”

Lewis says candidates who lack family and social networks in the profession, financial resources or who are racialized, or members of historically marginalized groups are the most likely to be offered unpaid positions but least in the position to take them on.

“The LSO should work to remove barriers to entry to the profession. Unpaid articles was one of those barriers that kept out licensing candidates who lacked financial resources.”

“We do not have any evidence about what requiring a minimum salary for articling students will do to the number of articling positions,” she says. “There is an assumption that the number of positions will be reduced. However, there is a difference between being unable to pay articling students and choosing not to pay articling students. Mandating a minimum salary will force employers who made a choice not to pay to revaluate that choice.”

Among the changes to the lawyer licensing process Convocation did approve on Nov. 26 was a plan to develop “an orientation program for articling principals, work placement supervisors and licensing candidates” and a plan to use the Bridge to Practice platform to “foster entry-level competence and skills.” The orientation program would “facilitate effective and fair experiential training,” and would not be mandatory, said the PDCC report. On Bridge to Practice, The LSO will also develop “free training modules” to fill “the identified gaps in articling placements, such as practice management and client communications.”

The third approved item was that the LSO will “apply a risk-based approach” in monitoring the articling process and reach out to candidate and principal when placements end prematurely.

“In terms of ensuring quantity of articling placements during the pandemic, this bench has been proactive,” says Wilkes. “We’ve reduced the term requirements for articling placements from 10 months to eight. We’ve eliminated the burdens of audits and mandatory re-education for principals. As a general policy matter, often the answer is simply that less financial and regulatory burden increases opportunity and is in the public interest.”

The deferred measure concerning the minimum wage proposed that the LSO adopt a compensation approach which “encourages rather than requires that all experiential training placements be paid.” The measure states the LSO would encourage paid placements through “continuing to require that postings on the Articling Registry be paid, requiring disclosure of salary of information on articles of clerkship, striving for more paid work placements in the Law Practice Program” and “collecting and reporting data on compensation ranges to allow candidates to make informed choices as they progress through the licensing process.”

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