Before I start, I’m going to stake out my bias here. I hate the Law Society of Upper Canada (LSUC), the organization responsible for regulating lawyers in Ontario. Not because I’ve had any problems with them, but because, in my experience, there are
few no public organizations as inept, incompetent and clueless as the LSUC. Everything they do, they do badly. They are the living embodiment of the old maxim that: “Those who can, do. Those who can’t do, regulate”. When I went through the bar admissions program, they handed around material that was outdated and wrong (badly, badly wrong). The bar admissions exam was a fiasco – the exam itself was filled with typos and spelling errors, and the organization was so poor it ran twice as long as it was scheduled to run and almost resulted in a riot. Every year I have to fill out to two separate annual reports at two different times, rather than filing a single report at the same time (ok, this is a petty complaint, but you know, even the tax man doesn’t make me file two tax returns). Even in their principal role of protecting the public from unscrupulous lawyers, it’s not clear that it is particularly competent (witness the recent Heydary fiasco, where the LSUC stepped in only after a lawyer allegedly disappeared with $3 million of his client’s money).
So, against that background, it shouldn’t come as a surprise to me that the LSUC would do something to completely fuck this year’s class of law school graduates. And yet… even as jaded I am, I was shocked by the announcement that the LSUC was DOUBLING licensing fees for students to become lawyers in the province of Ontario to almost $5000.
Some background is necessary here. Traditionally, if you wanted to become a lawyer in Ontario, after you finished law school, you had to “article” with a more experienced lawyer for 10 months before you could call yourself a lawyer (basically, it’s a glorified apprenticeship). But, in recent years, certain Ontario law schools have been steadily increasing enrolment (and collecting hefty tuition fees to fund their outrageous faculty salaries) while cranking out graduates without regard to the ability of those graduates to actually find employment as lawyers (Ottawa, Queen’s, I’m talking about you). Add to that the influx of Canadians who have attended law school in Australia (i.e., losers who couldn’t get into a decent Canadian school, but were willing to drop a small fortune to go to school in Australia – ahem, Bond University), and all of a sudden the LSUC has been faced with a shortage of articling positions relative to the hoard of would-be lawyers.
Now, as I’ve argued before, this is a problem that’s not a problem. In any other profession, say, doctors or academia, if you can’t get hired in your area of expertise, well, you can’t get hired. That’s a bummer, but it’s not a problem that someone else has a responsibility to resolve. If you can finish med school or a PHD, you must have something going for you, find a job in another field, even if you can’t find a residency position or a tenure track job. One might think that the same logic might apply to law school graduates.
But, of course, logic isn’t necessarily the strong suit of the LSUC. So, instead, they created a parallel licensing arrangement, whereby those losers (and while that sounds harsh, what else can you call them?) who can’t get articling positions get to do a 4 month “law practice program” (LPP) followed by a 4 month practicum, and then they can call themselves lawyers. Now, this is “solution” that really doesn’t address the fundamental problem. The problem isn’t that we have a shortage of articling positions, it’s that there a lack of demand for legal services, period (witness last week’s rather spectacular implosion of Heenan Blaikie LLP – previously one of the giants of the Canadian legal establishment). Cranking out more lawyers (and weaker lawyers) doesn’t solve that problem. Those students who can’t get articling positions won’t be able to find associate positions or make a living by hanging up their own shingle after they finish the LPP, so all the LPP process does it defer the inevitable result that those students will ultimately get jobs outside of the legal profession. Oh, and it also costs a lot of money.
Which brings me back to how the LSUC is fucking law school graduates. When the LPP idea was first floated by the LSUC, not much was said about how they’d pay for it. Seems like that’s because the LSUC was planning to stick this year’s crop of students with the bill.
Now, this is unfair on three different levels. First, if you were going to stick students with a $5000 bill (rather than the ~$2700 students last year paid), it would have been nice to tell students that, say, last year. Not three months before the end of school. Maybe give students some time to come-up with the extra money, or make arrangements to pay for it. Even if you have no problem sticking students with the bill for the LPP (and I’ll talk about why you should have a problem with that in a second), it’s really shabby for the LSUC to drop this on students at the last minute. But then, shabby is what the LSUC does best.
Second, this is quite unfair to the 80-90% of law students who have articling position (i.e., those students who went to decent law schools, got good grades, and hustled to find themselves articling positions). They might well ask why they, of all Ontarians, should have to foot the bill to fund the licensing process of their colleagues who couldn’t get their shit together to get an articling position. I mean, why should the kid who busted his or her hump to get into UofT, graduate with an A-average, or impress potential employers, have to subsidize the trust fund brat who couldn’t get into a decent Canadian law school, but could afford to ship out to Bond University for a couple of years.
It’s not like articling students get anything for that $5000. Sure, part of it goes to pay for the bar exam, but the reality is that the bar exam is a joke. Unlike the New York bar, which is a serious barrier to entry (i.e., people regularly and repeatedly fail the New York bar – even 10% of Yale grads fail it on the first go), as a practical matter, anyone who really tries can pass the Ontario bar exam. Basically, if you speak English (or French) and can manipulate a pencil, you should be able to pass the Ontario bar exam eventually. (Aside, if the LSUC was looking to save money, they might consider getting rid of the Ontario bar exam, and using the savings to fund the LPP).
Plus, keep in mind, those students who have articling positions work their asses off for 10 months. Part of the LSUC’s rationale for the fee structure is that they want to equalize the burden on articling students and students in the LPP process. Equalize the burden? I’m sorry, are the students in the LPP process going to be working 100 hour weeks on high stress files? When I was an articling student, my wife would often only see me when I rolled out of bed in the morning, and rolled back into bed in the middle of the night. For the first four months of my son’s life, he saw me only for the few minutes at midnight when I came home and fed him. Articling students, my friends, work damned hard. They pay for their call to the bar with figurative blood and literal sweat. So don’t tell me a story about “equalizing” the burden between articling students and students taking the LPP program – no one who has articled in the modern era (which, I suspect excludes most benchers) could make that statement with a straight face. If you couldn’t do those things that you needed to do to get an articling position (i.e., get into a decent law school, get decent grades and hustle to get an articling position), you should pay for your own damned training.
Third, if you’re the sort of soft-hearted (and soft-headed) soul who thinks that it’s unfair to expect unsuccessful law school graduates (i.e., those graduates who can’t get articling positions) to pay for their own training, why is it fair to expect that cost to be borne solely by the fellow members of their graduating class (many of whom are saddled with 6-figure student loans). If that’s the path we’re going to take, isn’t that a cost that should be borne by the profession as a whole? Traditionally, articling reflected a professional ethos that held that lawyers had a responsibility to train the next generation of lawyers. Firms took on articling students to fulfill that responsibility. Many firms (including my own) still share that ethos. Wouldn’t it have been in keeping with that professional spirit for the LSUC to require all Ontario lawyers contribute to the training of the next generation of lawyers by paying for the LPP? Certainly, it’s hard to see why articling students – who, of all people subject to LSUC diktat, have the least ability to pay (and the least ability to object) – should bear the costs of training their loser colleagues.
I HATE paying law society fees – but I would rather pay an extra $100 or $200 or whatever a year to fund the LPP, than stick some poor articling student (i) who makes a fraction of what I do, (ii) is saddled with a hefty student loan, and (iii) won’t see sunlight for 10 months, with a bill for an extra $2300. It is, frankly, unconscionable that the Benchers of the law society signed off on this proposal. Only someone with no moral compass could think that this is a “fair” or a “just” proposal. Anyone who supported this proposal should be utterly ashamed of themselves. But then, I don’t believe that anyone at the LSUC is truly capable of shame.