Discrimination and Power Imbalances Plague Canada's Lawyer Training Process
A shortage of articling positions and the profession's changing business model are also contributing to a need to review how the country licenses lawyers.
December 20, 2019 at 12:16 PM
10 minute read
It was Melissa Ojanen's first week at the Professional Legal Training Course, or PLTC, a mandatory component of the articling and bar exam process in British Columbia, Canada. But on Friday of that week, instead of concentrating on the day's lesson or her weekend plans, Ojanen's whole career path was shaken when a process server handed her a termination letter from her articling position and a notice that a civil claim had been filed against her for breach of contract, theft, wrongful use of marketing materials and trespass. It happened right in front of her classmates and future colleagues, according to court documents. Her principal (or formalized mentor), Paul Doroshenko, was behind the claim.
"The decision to serve Ms. Ojanen in front of her classmates at PLTC was unnecessary and psychologically brutal," Justice Geoffrey Gomery of the British Columbia Supreme Court later said in a judgment issued this August dismissing the suit against Ojanen and awarding her almost $70,000 in a counterclaim for wrongful dismissal.
"The usual power imbalance between employer and employee was accentuated in this case," Gomery continued. "Ms. Ojanen was a young woman without local contacts in the legal profession. Mr. Doroshenko was the head of an established law firm. Ms. Ojanen was terribly vulnerable."
The vulnerability of rising lawyers like Ojanen and the power disparity so starkly outlined in Acumen Law v. Ojanen are among the reasons critics are calling for a reform to the articling process in Canada, or for its replacement altogether. A shortage of articling positions and the profession's changing business model are also contributing to a need to review how the country licenses lawyers.
Articling is a 10-month apprenticeship necessary for qualifying as a lawyer in every province except Ontario, which in 2014 introduced an alternative structure to legal licensing, called the Law Practice Program, to much debate within the profession. Its model sees students working in a virtual firm to gain practical experience, attend classroom sessions and then complete a shorter, four-month apprenticeship.
At the Lakehead University Bora Laskin Faculty of Law, which opened in 2013, skills training and a four-month apprenticeship are embedded in the legal education, allowing students to opt out of articling. Students from all streams must write and pass the bar exam, like in the United States. However, unlike the American system, Canada requires some degree of experiential, on-the-job training before lawyers can sign off on their own work.
"In a way, the unusual thing is the American experience," said legal historian and Osgoode Hall Law School professor Philip Girard. "Before we had universities, legal education began with some kind of apprenticeship."
According to Girard, during President Andrew Jackson's era, which saw a radical democratization of the legal profession, legal apprenticeships were dismantled, as they were viewed as elitist and a barrier to entry in the profession.
"That left a kind of vacuum," Girard explained. "And that's where the universities started to fill that gap. That's when you get the invention of university legal education."
By the early 20th century, American lawyers wanted to reintroduce an articling requirement, but couldn't persuade the universities or legislators to agree.
"The reason you don't have articling today goes back to the events of the 1830s and 1840s, when they got rid of articling," Girard said. "In Canada, the story is really just one of continuity."
But just how long that continuity will last is hard to say. The Canadian Bar Association's Legal Futures Initiative, published in 2014, predicted that the current articling system in Canada will disappear in the medium to long term. Ian Holloway was the legal education and training team lead for that report and is the dean of the University of Calgary's law school. He's a major proponent of changes in the articling process.
"It's a terrible system, as a system," Holloway said. "I want to be clear, there are many students who have wonderful articling experiences. Most lawyers I know are noble and dutiful people and they do their best. But as a system of professional preparation, I don't think it's very good."
In addition to citing the power differentials and one-size-fits-all structure of the system as detriments, Holloway also said the dated business model based on the notion of noblesse oblige, or the law as a learned profession, doesn't mesh with the way law firms operate as businesses today.
"We place the most vulnerable members of our profession—students trying to crack open the door so they can get in—in the position of having to be the de facto police officers," Holloway said.
Recent data confirms this position. A 2019 articling survey conducted by the Law Society of Alberta found 32% of respondents reported experiencing discrimination or harassment during recruitment or articling, and, in a 2017 survey by the Law Society of Ontario, one in five respondents reported facing harassing or discriminatory comments or conduct during their articling terms. In February, the Canadian Bar Association wrote to the Federation of Law Societies of Canada urging it to take action in monitoring and improving the experience of articling students across Canada.
If there is change, though, Holloway doesn't want to see Canada moving toward an American system. "For all my concerns about articling, which I hold very strongly, the one thing in its favor is it's not as bad as the American model. I think it's unconscionable to bring people all the way through law school…and to fail 20% to 30%, in some states 40% of them," he said, noting the rising costs of law school.
One potential workaround is the Law Practice Program introduced by the Law Society of Ontario in 2014 to respond to the bottleneck of legal graduates from both Ontario and internationally who wanted to get licensed but couldn't find an articling position. According to a 2016 Labor Market Trends report from the Higher Education Quality Council of Ontario, in 2012, the number of Ontario law graduates surpassed 1,800, which was a 60% increase from 2007. During that time period, international graduates and graduates coming to Ontario from other provinces also significantly increased, amounting to approximately 2,500 total new law graduates, an increase of 1,000 from five years earlier. Meanwhile, the number of newly licensed lawyers in Ontario remained at 1,500 a year.
"The articling requirement imposes an effective ceiling on the supply of new lawyers, as the number of positions is limited," the report said. A 2018 Lawyer Licensing Consultation Paper by the Law Society found that there are 200 to 500 candidates actively searching for articling positions at any given time.
"The Law Society was faced with a mandatory articling requirement and not enough positions," said Chris Bentley, the founder and managing director of the LPP. "So the Law Society conducted some discussions and they really had two ways to go: either get rid of articling altogether and go to what we understand to be the American model, or retain this notion of apprenticeship but bring in another parallel approach, which is the LPP."
Bentley admitted there has been energetic debate surrounding the program, which saw 238 graduates in its inaugural year—fewer than anticipated, according to the consultation paper. It cited research from candidates, lawyers and others in the field suggesting the LPP is not the first choice when people are looking to get licensed, since articling is perceived as the more traditional pathway and offers longer paid employment, as well as concerns over a second-tier class of lawyers. The report, however, suggested this perception may be declining and that candidates are very satisfied with the training they receive in the program. Compensation remains an issue though, with 30% of LPP candidates not being paid for their work placement.
Running the program itself is also expensive. Each year, Ontario lawyers contribute $1 million toward the cost of the LPP, and the program caused licensing fees to jump from $2,910 per candidate to $5,210 per candidate (which is then offset to $4,710 by the $1 million contribution). This amount is borne equally by both articling and LPP students, regardless of their path. Bentley said the cost structure was based on a startup model, with a three-year contract, and could be modified or scaled depending on need. In December 2018, the Law Society of Ontario permanently approved the program as an alternative structure to articling. Bentley said he's been approached by members of law societies across Canada wanting to know more about it.
With respect to the power dynamics between articling students and their employers, Bentley said the LPP checks in with students during their four-month placement, as well as with firms. Each year there are situations in which a student is pulled out, either because they or the employer quickly decides the match won't work. "We step in, from both sides," Bentley said, but he acknowledged the LPP isn't an answer to the power imbalance or the treatment of women and minorities in the field of law. The issue is systemic and professionwide, he said.
"There are many advantages and disadvantages, people would say, about the two approaches, of either just exams or an apprenticeship, but the reality is that law school has tended not to prepare you for practice," Bentley said. "So you'd have a whole bunch of people coming out who can write an exam, but can't do a heck of a lot more. And that is a bit of a problem. Not only a problem for consumers, the public, whether they're individuals or businesses, but frankly a problem for the lawyers themselves. How can you succeed without knowing how to do anything?"
Whether the initial training comes from a program such as the LPP or an articling position, when it comes to Big Law in Canada, it's likely that the "firm's operations would remain consistent when it comes to training junior members," according to Marketta Jokinen, a former labor and employment lawyer and the former director of professional recruitment at Borden Ladner Gervais in Vancouver, who now works as an independent talent consultant and career coach.
"The recruiting of young lawyers while they are in law school is fundamental to the firm and the strength of the firm," Jokinen said. It's a significant investment in lawyer time both to recruit and train these junior employees. But it's also considered a way to give back to the profession, she noted.
"I don't see how, fundamentally, you get around it. And whether we call it articling or whether it's just like in the U.S. the first few years of practice … what we label it, I'm not sure it matters from an overall business perspective," said Jokinen. "You have to be training your junior people, whether it's a sophisticated, coordinated program like the larger firms provide, or whether you're a firm of four or two."
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllFrom ‘Deep Sadness’ to Little Concern, Gaetz’s Nomination Draws Sharp Reaction From Lawyers
7 minute readDechert 'Spark Tank' Competition Encourages Firmwide Innovation Focus
Akerman Opens Charlotte Office With Focus on Renewable Energy, Data Center Practices
4 minute readLaw Firms Mentioned
Trending Stories
- 1People in the News—Nov. 21, 2024—Willig Williams, Hangley Aronchick
- 2Rawle & Henderson Hires New Del. Managing Partner
- 3Divided State Court Reinstates Dispute Over Replacement Vehicles Fees
- 4Construction Worker Hit By Falling Concrete Settles Claims for $2.3M
- 5Phila. Jury Hits Sig Sauer With $11M Verdict Over Alleged Gun Defect
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250