On May 24, 2018, the Law Society of Ontario (“LSO”) released “Options for Lawyer Licensing: A Consultation Paper”. In the paper, the LSO provides four lawyer licensing options for consideration. Below, each option from the paper is presented along with commentary.
Option 1: Current Model: The current two transitional training pathways would be retained, taking into account the fact that the current model is continuously adjusted to accommodate new developments.
The current model provides students with two transitional training pathways. For those wanting a more hands-on experience, there is the articling program which requires you to gain relevant legal work experience. There is also the Law Practice Program (“LPP”) which involves a mixture of in-class and on the job training. The Articling Program and the Law Practice Program require licensing candidates to pay a fee of $2,800 plus applicable taxes.
The current model offers students some flexibility. Both programs are very well designed and continue to undergo adjustments to accommodate for new developments.
Students can use both transitional pathways to secure a job and decide which practice area(s) to specialize in. The current model does not provide a minimum wage for students gaining experiential training. In the current model, compensation paid to some students is nominal and others can be required to volunteer their time. This can be challenging for students expecting a pay day after graduating law school. However, in the current model, the challenges and difficulties are all part of the process and considered by some as a rite of passage.
Option 2: Current Model with Enhancements: The current two transitional training pathways would be retained, with enhancements. These enhancements include a requirement that candidates be paid at the statutory minimum wage, audits and greater oversight of articling and work placements. Candidates would be required to pass the barrister and solicitor licensing examinations as a prerequisite to transitional training and then pass a new skills examination in order to become licensed.
Option 2 is very similar to the current model with a few modifications. The implementation of a statutory minimum wage, audits and greater oversight of articling and work placements may make things better for licensing candidates. It remains to be seen however, if these implementations will negatively or positively impact the legal job market for new graduates.
Passing the licensing exams prior to entering transitional practice may translate to a better understanding of substantive legal knowledge. A new skills examination before being qualified to practice law will add another layer of training for fresh graduates. This may further raise the "bar" for new calls in Ontario. On the other hand, some may find a new skills examination at the end of transitional training to be redundant.
Option 3: Examination-Based Licensing: Candidates would be licensed after they first complete the barrister and solicitor licensing examinations and then the new skills examination. Transitional training, such as the requirement to complete articling or the LPP/PPD, would be eliminated as a requirement of licensure. The management of regulatory risk would shift to post-call and depend on the career path of the new licensee. Candidates who choose not to practice law and licensees practicing in a workplace of six or more lawyers would not be subject to any additional requirements. Licensees practicing as sole practitioners or in a firm with fewer than six lawyers would also be required to complete a new practice essentials course and would be subject to audit within their first few years of practice.
For candidates looking for a quick entry into the law, this may be the best option. This option eliminates the transitional training requirement all together and shifts regulatory risk to post-call. This option is very close to the American model with a few modifications.
A new practice essentials course and additional oversight over new calls in a solo practice or small firms (fewer than six lawyers) may benefit both the profession and the public, by ensuring a higher quality of legal service.
This option does, however, fail to recognize the need to allow new graduates an experiential training opportunity prior to practicing law and may offer the public less protection. Although increased oversight and a new practice essentials course is meant to compensate for a lack of transitional training pathways offered in the current model, experiential training prior to practicing law may be far more worthwhile.
Options 4: LPP for all Candidates: All licensing candidates would be required to complete the training course component of the LPP/PPD, without the work placement component. Candidates would also be required to successfully complete the Barrister and Solicitor examinations and the new Skills Examination.
This option eliminates the current two separate transitional pathways. Although the LPP and the Articling Program are meant to be at par, the two pathways are not always perceived as equal by prospective employers.
This model also eliminates the experiential training component and instead relies solely upon in-class training coupled with the new skills examination as a means of preparing candidates for the "real world".
Though the lack of experiential training may be troubling for some, in-class simulations and a skills-based program can replicate some components of on-the-job training. Like option 3, this model would shift the management of regulatory risk to post-call and depend on the career path of the new licensee.
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Editor's note: If you would like to engage in the discussion about licensing pathways, according to the LSO, "Written comments are welcome until October 26, 2018 and may be submitted to the LSO at www.lsodialogue.ca. The submissions received will inform the Committee’s recommendations to Convocation regarding the lawyer licensing process in early 2019."
About the author
Tahir Khorasanee is a Vice-Chair of the Young Lawyers Division at the Ontario Bar Association and an Associate Lawyer at Wakelin & Associates practicing Commercial and Insurance Litigation.
Ali Haque and Sharu Ratnajothy are students at Wakelin & Associates, both of whom offered their assistance.
Any article or other information or content expressed or made available in this Section is that of the respective author and not of the OBA.