A.L: You've argued that the current model of legal education in North America is unsustainable. With the growing disconnect between what is being taught in law schools and the realities of the profession something clearly has to give. In your opinion what has to change within the academy?
J.F: Honestly, I'm not sure the legal academy as currently structured can reasonably be expected to summon or withstand the change required. The law school model is too longstanding, too entrenched and too inertia-prone. These are highly centralized, ritualistic and self-reproducing institutions; they can only be what they are, and it's not realistic to suppose they can become something very different. To be a relevant factor in the future legal marketplace, law schools would need to turn over much of their faculty, reform much of their curriculum, and reconsider the necessity of much of their physical infrastructure, including libraries and classrooms. When you get to talking about that degree of change, you come to conclude that what you need isn't a renovation, but a new greenfield build. There will still be a place in future, I should add, for a traditional sort of law school; there just won't be nearly as many of them as there are now.
A.L: In the United States there has been a sustained attack on the current model of legal education with a series of high-profile articles in the New York Times, U.S. Senators questioning the motivations of the American Bar Associations and the rise of the "scamblogger". Do any of the core criticisms leveled at American legal education hold true in Canada?
J.F: Canada has roughly one-tenth the number of law schools as the U.S., tuition even at the most expensive schools here hasn't approached what's charged by their American equivalents, and the job market for new lawyers here hasn't collapsed the way it has in the U.S. So I don't think we'll see the same firestorm of criticism here for at least a few more years yet. But the fundamental underlying complaint about US schools does have resonance here: that law schools are not especially concerned with the law practice careers their graduates pursue. There is still, to a pretty astonishing degree, a belief among many law professors that schools are academic institutions first and foremost, which frankly is difficult to reconcile with the tuition they charge. That is not a sustainable belief in a changing legal market, and schools that fail to recognize and act on that are going to run into trouble sooner than later.
A.L: What's your assessment of the labour market in Ontario (and Canada) for recent law school graduates and recent calls to the bar? What issues are driving the articling crisis?
J.F: For the next year or so anyway, that market should remain relatively robust - the economic crisis has had a relatively glancing impact on Canada so far and I'm not aware of any Canadian law firms in remotely serious financial straits. I'm far less sanguine about our economic prospects throughout the balance of this decade, however, and with any kind of serious downturn will come equally serious pressures on lawyers and law firms.
I'm not convinced there's an "articling crisis," at least in the way most people have been discussing it. Even with the growing number of students unable to find articles, the placement rate in Ontario is something like 88%. Contrast that with the U.S., where full-time first-year lawyer employment is hovering around 65% and might actually be lower. As I've written before, some (but by no means all) law grads who fail to find articles do so on merit. Full articling employment, it will become increasingly clear, was an accident of history and generational currents; articling, for as long as it remains with us, will probably average about a 75-85% placement rate. In pure market terms, that's not bad; but since articling is a prerequisite to practice, it's also obviously unacceptable. That's the real crisis facing articling in future: it cannot continue to be a sine qua non for passing the bar if not everyone can get a position. Unless the law society can somehow find a way to guarantee full articling employment -- and I can't think of any way in which they could do that - articling will have to lose its mandatory status sooner or later, which will call into question its entire purpose.
A.L: The Law Society of Upper Canada launched the Articling Task Force last year; they're currently consulting the profession about a number of possible changes to the articling process. This isn't the first time in recent memory that the Law Society has undertaken an examination of the articling process with previous efforts not bringing about much in the way of change. What's your assessment of whether the Articling Task Force will recommend significant changes to the articling process?
J.F: I can't really speak to what the Task Force is considering and I wouldn't want to speculate about its conclusions ahead of time. I will say that this task force faces challenges that its predecessors did not: those committees were often only considering "what if" and "wouldn't it be better if we could" types of reform discussions. This task force is facing challenges that are not theoretical or aspirational, but practical and visceral. The market for legal talent is changing; expectations about the training and competence of lawyers are changing; the underlying economics of law practices are changing. Articling lies directly in the path of all these oncoming storms.
A.L: The consultation report has put forward five different options for the articling process; these options are: status-quo; status-quo with quality assurance; replacing the pre-licensing transition requirement with a post-licensing transition requirement; a choice of a practical legal training course or articling; or, only a practical legal training course. Which option(s) do you think best balances out the needs of the profession, students and the public interest?
J.F: Well, the status quo isn't working very well right now and will work even less well in future. Beyond that, it's difficult to say. None of the other options is terrible, but none is perfect either, which means that whatever route is chosen will have its merits and will face its criticisms. You have to look at it from the law society's point of view, which is that its mandate is to govern the profession in the public interest: that's its priority, and the interests of students and law firms will necessarily be secondary. I think that if our primary interest in the lawyer admission process is to maximize the effectiveness of initial professional development (IPD, if you like, in contrast to ongoing CPD throughout a lawyer's career), then the eventual solution needs to be systematic, accessible, fairly administered and transparently evaluated. That sure isn't articling, but it could be a practical legal training course.
In my perfect world, we'd have "teaching law firms," like teaching hospitals where interns treat low-income patients under the supervision of experienced doctors and in affiliation with a respected university. The legal profession equivalent would be a law firm operated not to turn a huge profit, but to stay in business as senior law students and young lawyers serve low-income clients with a range of legal issues under the supervision of experienced practitioners, again in conjunction with a respected university. That would help solve a wide range of problems in our profession, from new lawyer training to access to justice, and I'd love to see a university without a law school (or even with one) launch a program like that. Maybe an enterprising group of lawyers, academics, and private-sector financiers could get together over the next few years and start planning that sort of innovation.
A.L: The legal profession is an industry in upheaval. In ten years the profession won't look the same. What advice do you have for young lawyers starting out?
J.F: If you don't have some knowledge of and experience with running a business - cash flow, accounting, marketing, customer service, etc. - try your best to acquire some. That sure doesn't mean summering in a big firm, but it could mean assisting a sole practitioner or small firm, to get a first-hand sense of the demands of enterprise. Every lawyer in future will effectively be a solo and will be responsible for the financial success of their own practices; best to get a head start on that learning curve now.
The generation now entering the profession was raised to believe they should follow their passion and do what they love. My advice is slightly at variance with that: do something you're good at, and not only will you be more likely to succeed career-wise, chances are you'll come to love it anyway. This is going to be a challenging decade, and few of us will have the relative luxury of pursuing passions that don't necessarily have the ability to pay the bills. Hop aboard whatever train is heading in the right direction and hang on; you can find the right seat for yourself down the line.
Nobody - not law professors, not lawyers, not clients - has any idea what the legal profession of the future is going to look like. All we know is that it very likely will not much resemble the one these people spent their careers in. Be as open to change as you can manage, and take advantage of all the tools - from advanced technology to mobile platforms to social media - that the modern profession gives you. But remember as well that there are some standbys that are 100% reliable in the new legal marketplace: caring about your clients and putting their interests first; carrying yourself with professional decorum and according others dignity and respect; leaving the profession better than how you found it. Beyond that: work hard, stay cheerful, and enjoy the ride.
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