On December 10, 2018, the Law Society of Ontario chose to stay the course on its dual streams for lawyer licencing. Apart from a few substantive enhancements such as the requirement for paid internships, a candidate for membership in the legal profession must either article under an approved lawyer or pursue an experiential education program called the Law Practice Program.
In its report of the decision, the Canadian Lawyer reported that the shortage of internship opportunities is only one problem in the Ontario market for legal services: “By 2025, there are expected to be 29,500 law school graduates but only 11,000 positions for new practising lawyers.” Veteran observers of the profession will remember the origins of the “articling crisis” in Ontario in the late 1990’s, coinciding with a trend among corporate clients to complain to major law firms about paying for students’ work. In the U.S., a similar attitude toward first-year lawyers started to prevail at that time. Forward-thinking law firms who saw students and first-year lawyers as future partners invested in education, whether or not their labour proved profitable. Others treated them as they treated photocopier or fax machine tracking: as profit centres, the need for law students and junior lawyers became superfluous in the eyes of the paying clientele. Other innovations such as online legal research tools, an early form of “AI” in the legal sphere, also ramped up the pressure. The end of the “golden rice bowl” was ever nigh.
Countering the economic trend in the carriage trade in law has been the evidence gathered by the same Law Society in the 2010 Ontario Legal Needs Project, that Ontario is a severely under-lawyered community. The public’s inability to access legal services stems both from lawyer expectations and from a collective decision to ignore legal aid as a public necessity. (One only need compare our legal system to the health care system, to imagine what would happen if individuals had to pay $50,000 for cancer treatment, $20,000 for heart surgery, or even $500 for an annual checkup.)
The second counter to the view that there are too many law students or junior lawyers is that, across the board, lawyers’ median incomes are nowhere as high as the public perceives them to be. At $87,482, Ontario’s median lawyer salary is 8% below the Canadian average. A lawyer making two, three or four times this amount may consider the willingness of lawyers to earn less as a threat to their livelihood. However, from a more objective and publicly-interested view, it means that most lawyers are prepared to serve the public for returns similar to those of a worker in an auto assembly plant.
Followers of the Law Society debate heard a recurrent and somewhat one-sided theme: that Canadian law schools are graduating too many candidates. Purely from a market perspective, the numbers prove this. But the “dirty science” of economics allow us to believe this only because we choose to exclude from the demand side those who require legal services and information but cannot afford them. Thus, it may be hard for lawyers to believe law schools are not churning out enough students, but only because of the protectionist bias against doing anything to hurt lawyers’ economic interests.
In Common Law Canada, the legal profession and the legal academy have been the estranged siblings of the professional world since the 1850’s, when the Law Society of Upper Canada used to discourage students from attending “academic” lectures. Even in 2009-15, Canadian law societies adopted Common-Law degree requirements for accreditation over the protest of the Council of Canadian Law Deans. The recognition of only one degree (LL.B. or J.D.) has meant that graduate studies fall outside the professional college model. The impact of this professional-school curriculum has historically meant that a Common-Law education has been a series of survey courses making for an extremely horizontal and rather shallow range of professional knowledge, skill and analysis.
Disciplines outside law do not suffer from the market forces that have shaped the legal academy and that have exposed it to the perennial outcry over the number of graduates. Faculties of philosophy or biology, for example, continue to fill lecture halls, provide affordable tuition and prepare students for a wide range of endeavour. This proves constant, even though there are few professional philosophers or biologists. Graduates from general arts and sciences do not follow a predefined career path, but employ their education, research and training in a host of valuable, well-paying jobs and businesses. Because of social or family pressures, there exists an irrational stigma attached to attending law school without becoming a high-flying lawyer. Serving the community has always been a pro bono activity. This mentality has unduly restricted the number of people who possess legal training and has held back our society for too long. Just as a successful restaurant needs someone with a background in accountancy no matter how good the chef may be, every organization in Ontario can benefit from hiring someone with legal training.
If we begin to realize that law is a subject worth studying in itself, whether or not it leads to a legal career, we can free law schools from its professional constraints and allow them to provide an education that stands its graduates in good stead, not only as lawyers but as any employed person in private or public life armed with skills in rule compliance and interpretation, decision-making, and dispute resolution.
The result of teaching law as other academic subjects, without being tied to the profession? How about tuition at $6,500 per annum? How about trebling the legal literacy of Ontario’s corporate sector and public infrastructure? How about integrating legal aid into community social services? How about a police force with law-school training in citizens’ constitutional rights and freedoms? How about it?