The CASE for standards of supervised practice in lawyer licensing

Speaking to a US-based regulatory conference last month, I remarked on a key difference between the Canadian and American lawyer licensing systems: “In Canada, we decided that nobody should be allowed to practise law until they’ve spent a period of time performing supervised lawyer work in a legal services environment.”

This mostly refers to the “articling year,” a decades-old tradition in Canada that mirrors similar customs in most other countries that require a person to complete a term of supervised practice or apprenticeship before they are granted admission to the profession. (Canada has a few other supervised practice options, which we’ll talk about a little later.)

In the United States, one of the very few countries that don’t have a similar requirement, interest in supervised practice as a replacement for the bar exam spiked during the pandemic and led several states, including California, Florida, and Illinois, to temporarily grant bar admission to aspiring lawyers if they completed hundreds of hours of practice under the supervision of an experienced practitioner.

A few Americans would like to see supervised practice become a permanent alternative to the bar exam, and I’ve often heard US lawyer friends comment admiringly on our articling requirement. But the reality of articling is less admirable than it might appear from a distance. In theory, it makes sense for an experienced practitioner to oversee an aspiring lawyer’s learn-the-ropes performance of lawyer tasks, providing valuable experience and feedback to the trainee while ensuring the client is competently served. In practice, that’s not often how it works.

Bar admission: Harder than you might think.

A supervised practice requirement for bar admission is terrific only if it’s done properly, fairly, and systematically. As I’ll describe below, articling in Canada is riddled with problems on all these counts. So I want not only to encourage countries that haven’t adopted supervised practice requirements (🇺🇸) to do so, but also to challenge Canada (and other countries) that do mandate this step to be more conscientious and vigorous about making sure it actually works.

Here are the most serious problems afflicting articling in Canada:

1. Unsafe and unfair: A survey in 2019 by three western provinces found that about a third of all articling students had experienced discrimination or harassment during their articling term, while another province’s survey in 2018 placed the total at more than a fifth; both these surveys likely under-report the extent of the problem. Moreover, systemic discrimination in law firm hiring means racialized students and internationally trained lawyers have a harder time accessing articling positions. The excuse of “cultural fit” has allowed hiring choices in articling to reinforce traditional barriers into the profession against women, minorities, and immigrants.

2. Absence of assessment: Standards of acceptable competence outcomes for an articling term in Canada are a very mixed bag. While each province provides lists of what a student is expected to learn, do, and experience during articling (see examples from Nova Scotia, Alberta, Ontario, and British Columbia), only some reference the Federation of Law Societies of Canada’s National Entry to Practice Competency Profile for Lawyers, while others simply state that the student should receive “practical experience and training” in these areas. More importantly, assessment amounts to little more than the supervisor’s prospective promise (or retrospective assurance) that everything on the lists will be or has been covered off.

3. Fewer opportunities: Articling positions generally are diminishing, leaving a growing number of bar applicants unable to fulfil this requirement and start their careers. Corporate clients have led market changes that reduced the demand for low-skilled lawyer labour: they have insourced basic legal work, re-directed that work to law companies and ALSPs, or fed it into the fast-growing maw of legal technology. Over the last couple of years especially, firms themselves have followed suit, reducing further the entry-level tasks available to novice lawyers. Ontario’s articling shortage prompted the approval of alternatives like an Integrated Practice Curriculum at two law schools and a Law Practice Program in two cities; British Columbia and Alberta are now examining new supervised practice options for similar reasons.

In some ways, articling is to Canada what the bar exam is to the United States — the traditional final stage in the licensing process, so rooted in the professional culture that its rampant flaws are ignored or excused on the grounds that “we’ve always done it this way” and “if I had to go through it, so does everyone else.” If we want to maintain our status as a self-governing profession that purports to apply robust, verifiable competence standards for admission to its ranks, then we need to do better than that.

Res ipsa loquitor.

Whether we’re Canadians talking about improving on articling or proposing superior methods of supervised practice — or whether we’re Americans looking to create a supervised-practice requirement of our own for bar admission — we need to establish a threshold standard for supervised practice, one that would satisfy skeptical outside observers that newly licensed lawyers demonstrably possess the entry-level knowledge, skills, and attributes of law practice.

I recommend that regulators and bar admission overseers create such a standard and integrate the following four elements into their lawyer licensing processes. And because people seem to like acronyms, I’ve arranged these elements to make my CASE that supervised practice standards should be:

Consistent: To ensure fairness, the supervised practice experience should be as similar for all licensure candidates as can be practically achieved. There is unacceptably wide variance in apprenticeships today: One articling student might benefit from a highly positive work environment with mentoring and support, while another might wind up in a barely functional law office, purely through the luck of the draw (or non-relevant hiring factors). This variance is a direct consequence of outsourcing a key element of the regulatory role to the private sector; either much tighter controls and parameters must be placed and enforced on law firm apprenticeships, or the whole process must be centralized under direct regulatory oversight. Which leads to:

Accessible: A supervised practice system that is unavailable to some licensure candidates is unfair; a system in which the inability to obtain a supervised practice opportunity is directly correlated to one’s race, ethnicity, or country of origin is unfit for the profession. There must be systematic assurance that everyone who wishes to become a lawyer can meet the mandated requirement of supervised practice. Moreover, affordability must be considered. Today in Canada, some supervised practice options pay much better than others, while others are unpaid altogether. This wide variance in the financial cost of apprenticeship is another barrier to entry into the profession.

Safe: We can’t continue to send young people into workplaces where they will be subjected to harassment, discrimination, or abuse, and simply accept it as “part of the experience.” It’s especially egregious that we tolerate this treatment of novice lawyers with no power or leverage, unfamiliar with legal culture and dependent upon their supervisors’ approval to complete their training and start their careers. If regulators are going to require vulnerable bar applicants to enter into legal workplaces, they must regulate and closely monitor those workplaces to guarantee they are safe, secure, fair, and free from exploitation. It’s no excuse to say ensuring that kind of system would be “too expensive.” If we can’t afford to provide safe apprenticeships, then the requirement should be abandoned altogether.

Effective: At the end of the day, even if all these other flaws can be addressed, no supervised practice system should be considered valid unless it demonstrably develops in its participants the competencies required for bar admission. It’s not enough to require principals to sign a document attesting that the student has “successfully completed” articles — such assurances have been rote for decades. Most regulators specify the competencies that articling must inculcate, but there is little or no independent assessment or determination of competence outcomes during or after articling. The absence of an evaluation framework converts what ought to be a thoroughly vetted development process into a mere rite of passage.

The problems I’ve listed here are serious; but they are not insoluble. With time, effort, resources, and creativity, not only can we overcome these challenges, we can institute a powerful, effective, and resilient system of professional formation.

  • Consistency and Accessibility can be improved by creating a centralized and closely monitored supervised practice environment — perhaps a “teaching law firm” where licensing applicants can provide legal services to underserved segments of the population while receiving experienced oversight, active feedback, and professional supervision from trained lawyers. Licensure applicants may freely choose to obtain their supervised practice qualification elsewhere, but an entity like this, open to all comers, would guarantee that nobody who wants to become a lawyer is denied the chance to meet this requirement.
  • Safety can be improved by requiring those lawyers who wish to act as the principal supervisors of apprentices to successfully apply for the role. Criteria for successful application could include previous experience in a supervisory or mentoring role, contact information for a former supervisee, and completion of an online training course (I made these recommendations to the Law Society of Alberta in a report last year). An equally valid approach would involve proactive management-based regulation, already in place or in development in several states and provinces.
  • Effectiveness can be improved in several ways, not least by reviewing and adapting the Solicitors Regulation Authority‘s best-in-class Threshold Standard and Qualifying Work Experience Record Template. The template in particular points in the right direction, because it empowers the licensure candidate to record those daily and weekly activities that advance the candidate towards achieving the specified levels of acceptable competence. Make this record accessible in real time to both the candidate’s supervisor and, importantly, the regulator, and you move closer to effectively measuring the candidate’s acquisition of entry-level competence.

Toughest CASE to crack yet.

Reforming a system of supervised practice, or creating a new system from scratch, is obviously a daunting prospect. Opponents of the reform (or creation) of a supervised practice requirement would object to the cost and complexity of the effort.

But in a profession that grants what is effectively a universal and permanent license upon admission — revocable only upon amply demonstrated proof of multiple serious transgressions — lawyer licensure is the single most important moment in the regulatory function. Everything hinges on the standards (if any) that we choose to set and enforce up until, and at, this moment.

I think there’s tremendous value in the proposition that “nobody should be allowed to practise law until they’ve spent a period of time performing supervised lawyer work in a legal services environment.” But if we’re not willing to back up that sentiment with action, then we have no business telling ourselves or others that we have a legitimate lawyer licensing system — and we shouldn’t force every new cohort of lawyers to pay the price of our self-deception.

1 Comment

  1. Alexandar Pavlov

    Great article!!! I have twenty years of experience as a lawyer and a public notary from Bulgaria and a Law Clerk certificate from Ontario. However I don’t have enough Canadian experience. In 2019 I was hired in two law offices in Kitchener and Listowel and later I was laid-off just in the end of the second month with vague explanations. I got great work references though which was so confusing for me. Later I started another job in paralegal’s office in March 2020 but Covid19 came and my employer closed the office permanently. Now I am working in a shelter for homeless people and people with addictions for already almost 8 months and today I had another job interview for a second job in law office. Why Canada does not benefit from the skills of people like me? Why is this unfair practice? I am lucky that I persisted and got this permanent job. Canada should encourage the immigrants with legal background to find jobs in the legal field. Thank you again for your great article.

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