If Articling Didn’t Exist, Would We Invent It?

Two more data points in the legal news recently (Canadian Lawyer, to be precise) to support the idea that we’re going about this “articling” thing all wrong.

• Former Law Society of Ontario governor Peter Wardle criticized the articling system for failing to ensure sufficient, consistent, high-quality experiential training, as well as the law society for again failing to tackle these problems effectively.
• The Law Society of Alberta is recruiting law firms to join a new program to place articling students who were driven out of their previous firms by discrimination or harassment, a program that’s straining under increased demand.

There’s a question I like to ask law firms and other organizations struggling with innovation: I’ll point to some feature of the business model or work environment and say: “If you weren’t already doing it this way — is this how would you start? Is this the approach you’d adopt? And if not, then why keep doing it?”

That question applies nowhere in the Canadian legal profession more aptly than to articling, a vestigial remnant of 19th-century bar admission that has been fraught with problems — insufficient positions, low pay, inadequate training, unsafe workplaces — for so long that it’s hard to recall what its benefits are supposed to be.

A number of people seem to think articling is a job placement program for new law school graduates. It is not. It’s a public protection measure. As I wrote in my report on lawyer licensing and competence for the Law Society of British Columbia in 2022, the point of the articling term is to ensure licensure candidates have served a period of supervised practice in a legal services environment, to make certain that candidates can:

• Apply in real situations the theoretical knowledge and practical skills acquired in law school and bar admission programs;
• Spend time immersed in a legal workplace to grasp the realities and mechanics of law practice, business operations, and client service; and
• Receive the guidance and support of a supervising lawyer in order to catch their mistakes, identify their shortcomings, and help continue their development into competent professionals. (p. 65)

I think a supervised practice requirement for lawyer licensure is sensible and defensible. But this requirement is also a barrier to, or at least another time-consuming step before, professional entry. As such, it must be maximally effective and minimally intrusive, and “articling” — by which legal regulators outsource to the private sector a critical element of new lawyer competence assessment with insufficient guidance, oversight, and protection — is neither.

I invite you to read pp. 16-18 and 64-81 of my 2022 report to the Law Society of B.C., where I set out my detailed proposal for a new approach to supervised practice for licensure in this country. But here are the highlights:

1. Permit supervised practice to take place at any stage of the licensure process, including (maybe especially) during law school. Clinics and externships are available at most Canadian law schools, and the quality of oversight and instruction is often better there than in many articling positions. Plus, such clinics frequently serve people who cannot access justice by traditional means.
2. Establish baseline criteria for acceptable supervised practice settings. These should include (a) trained supervisors who meet minimum qualifications, (b) the provision of legal services to real clients, and(c) demonstration by the candidate of a required minimum number of competencies specified in a Competence Framework (see also my 2021 Law21 column on standards for supervised practice)
3. Allow for flexibility in the duration of supervised practice. The articling “year” was already a fiction even before the pandemic — terms ranged from 6 to 12 months nationally and were shortened further by COVID-19. Set a minimum length of 4 months and a maximum of 16, but make completion of the term dependent on demonstration to the supervisor of a threshold number of required competencies.
4. Encourage innovative approaches to the supervised practice requirement. Housing the requirement in law school clinics is a good idea, but so are the Integrated Practice Curricula at Bora Laskin and Lincoln Alexander Law Schools, and so would be a “teaching law firm.” So long as the candidate is serving real people under the effective and systematic supervision of a lawyer, everything is fair game.

Lastly, before we spend any more time and energy trying to “fix” articling, let’s remember that the real question is why the lawyer licensure process is so broken that it takes three to four years and hundreds of thousands of dollars before candidates receive any such experience. The “problem” of articling is really a problem of an antiquated, inefficient, and frequently ineffective bar admission process.

We mandate articling because law schools and bar admission programs don’t sufficiently prepare candidates to practise law. Articling is a bandage loosely applied in the aftermath of a surgical procedure that didn’t go quite right. It stops the bleeding, and in time it helps with healing, but it would never have been necessary had the operation been carried out correctly in the first place.

Let’s stop trying to make a better bandage. Let’s revisit the whole point, and reconfigure the whole process, of the operation itself. If articling didn’t exist, would we invent it as the sole means of providing supervised practice?

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