It has long been an open secret that our articling system is deeply flawed. But is it unethical?
Articling today is a system that would be equally at home in Downton Abbey and in Booker Prize Winner Hillary Mantel's Wolf Hall.
While I don't think articling is inherently unethical, I do believe that it is inherently unequal and therefore creates an environment where unethical behaviour is possible. Articling takes a vulnerable and powerless law student who is often carrying a significant financial debt and requires her to be at the beck and call of an experienced lawyer with largely no oversight.
Desperate students will do almost anything to obtain articles and they will put up with almost anything to fulfil their articles. Some students even article for free, a possibility that exists only because articling is exempt from general wage and hour legislation that protects most employees.
It is important to identify and separate at least three possible ethical concerns about articling (with thanks to Alice Woolley): (1) the possibility for harassment and discrimination during articling; (2) the lack of quality control over what actually goes on in articling; and (3) the systemic inequalities created by the articling system, i.e. poor working conditions, long hours and low wages (for some). To some degree, these three concerns are interrelated, as I have come to discover recently.
As a teacher of legal ethics, I have become somewhat of a magnet for students with ethical issues. Over the past six months, I have had a number of my former students approach me for advice about how to deal with their "toxic" articling work environment.
One of these students is "Kate" (not her real name). Kate was one of the best students that I have ever taught. She was a Professor's dream: smart, engaged and enthusiastic. Kate had a passion for the law and for her studies and her enthusiasm was infectious. Awards piled up for Kate and she graduated in the top of her class. I wrote letters of recommendation for Kate with the greatest of pleasure.
When it came to articling, Kate was fortunate to have her choice of several firms. To say that we need more students and more lawyers like Kate is an understatement. But I fear that we in the legal profession are going to lose Kate and others like her because of the experience that she is having articling.
In August, a month into articling, Kate contacted me. She wrote:
I had a question I was hoping you could help me with. Do you know if it is common practice for firms to tell their students the "unspoken rule" is that they cannot leave until all the partners do (irrespective of hours already worked or the presence, or lack thereof, of impending deadlines) and that they are not to take lunch out of the office?
Thus began a series of correspondence where Kate made it clear that she had explicitly been told she couldn't leave the office, couldn't go for lunch and much worse.
A month later, Kate wrote to me again:
I am finding my work environment to be toxic/abusive. After having spoken to several colleagues, I have realized the on goings and treatment at my firm seem to be far more negative than other firms, and I assume completely inappropriate. While I am prepared to suck it up and chalk this up to a "life experience" (I know articling isn't usually a fun experience for anyone) I am worried about the quality of the education I am getting here, and the type of lawyers I am learning from. Any advice would be much appreciated as always.
I was concerned about Kate and I met with her in person. When she told me what was going on at her firm, it became clear that there was an element of sexual discrimination or harassment. To Kate, this was a minor issue compared to the daily "ordinary" harassment. However, to me, the mention of potential sexual harassment was the "hook" to refer Kate to the Law Society of Upper Canada's Discrimination and Harassment Counsellor Cynthia Petersen.
The Discrimination and Harassment Counsel Cynthia Petersen recently released a 10 year report on her office. The results are not pretty, especially for articling students. Of all complaints, 22 per cent came from law students, primarily articling students but also summer students.
To put this in perspective, there are 46,000 lawyers being regulated by the Law Society in Ontario. There cannot be more than 2,000 students. So students make up maybe just over 4 per cent of the legal population, but account for 22 per cent of all complaints. And yes, 75 per cent of the complaints from students are from women.
But the picture of abuse is actually worse. The Discrimination and Harassment Counsellor only has jurisdiction over harassment and discrimination allegations based on human rights prohibited grounds of discrimination such as race, gender and sexual orientation. Her office has no jurisdiction over harassment allegations that are not based on any prohibited grounds of discrimination such as allegations of bullying, intimidation, abuse of power, etc.
Articling students facing such harassment have few choices. They could make a complaint to the Law Society, file a complaint under the firm's internal workplace harassment policy (assuming it exists), consult an employment lawyer or perhaps bring a human rights complaint. The power dynamics of articling make such options not particularly appealing to most students. So most would stick it out. Some brave ones like Kate may quit her job and look for other work. Others may leave the profession.
As members of the legal profession, we often boast about the high ethical standards of our profession. We need to look more at how we treat the most vulnerable members of our profession.
To its credit, the Law Society of Upper Canada has realized many of the flaws in the current articling system during its recent review of articling: the lack of oversight and quality control over articling. I hope other law societies will as well.
Jordan Furlong wrote a fantastic must-read blog where he implored lawyers and law firms to "ask the Moneyball question" about the practice of law. That question is essentially, "If we weren't already doing it this way, is this how we would do it?" Furlong asks this question about the practice of law and innovation (elsewhere he asks it about women and the law).
I like to ask "the Moneyball question" about regulation of the practice of law. Law societies have outsourced the responsibility over legal training to lawyers in private practice with next to no supervision. Law Societies are much better at making lists of skills that articling students are supposed to acquire during articling than they are at ensuring that articling principals actually teach these skills. No business would run its operations like this and it is no way to run a licensure system.
As I have argued elsewhere, Law Societies need to regulate law firms. I have come to realize that no example better makes my case than the poor state of articling both in terms of the lack of oversight over quality control and over the ethical abuses that take place in articling.
Is articling unethical? I don't necessarily think so. What is unethical is ignoring the abuses that occur in articling and failing to effectively regulate articling so as to prevent such abuses.
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