At Whose Expense? the Intolerable Human Cost of Articling

• Author: Amy Salyzyn
• Date: October 18, 2018

We know that there is significant discrimination and abuse in articling. We’ve heard the stories and we have the stats too. To cite just a small amount of recent information we have in Ontario:

• Over 100 articling students responding to a 2017 Law Society survey reported unwelcome comments or conduct related to personal characteristics (age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex and/or sexual orientation).
• The Law Society’s Discrimination and Harassment Counsel (DHC) recently reported that it has observed a significant trend of complaints about abusive employment relationships – the largest sub-set of which involved articling students. The complaints it received included reports of being subjected to verbal abuse and threats; not being paid or being paid less than minimum wage; and bullying. The DHC received a disproportionate number of reports from students who received their training outside Canada and who are completing articles under the NCA process, or racialized students.

Others have previously written in detail about discrimination and abuse in articling (take, for example, the excellent previous Slaw columns by my Dean, Adam Dodek – here and here). It’s necessary to revisit now, though, as the question of what we should do with articling is yet again on the table in Ontario. The Law Society is currently consulting on several different options for its lawyer licensing process (my fellow legal ethics co-columnists Noel Semple and Malcolm Mercer have written recently in Slaw about this consultation – here and here).

To be honest, I used to be agnostic about the seemingly age-old question “Articling: Good or Bad?” But, lately, I can’t escape the feeling that we’ve hit the point where we can no longer justify maintaining it. It seems to me that there’s an intolerable level of bad behaviour and associated harm, along with little hope of change.

To its credit, the Law Society has taken concrete steps to address issues of discrimination and abusive behaviour in the legal profession. For example, it created the DHC to provide confidential services to those who have concerns or complaints about discrimination or harassment. It also introduced rules that explicitly prohibit harassment and discrimination. The DHC, however, has been in place for more than 15 years and there have been rules about harassment and discrimination for more than 20 years. Both the DHC and these rules are important but, clearly, they have been inadequate in eliminating the systemic problems in articling.

More recent actions and proposals by the Law Society are likewise commendable but of questionable efficacy. In April 2018, the professional conduct rules on discrimination and harassment were amended to emphasize the pre-existing obligations in this area and to take note of some legislative changes. Moreover, a special team that was formed after the Law Society received the results of the 2017 articling experience survey has recommended, in addition to these rule amendments:

• Reviewing and assessing the Discrimination and Harassment Counsel Program
• Enhancing marketing of Discrimination and Harassment Counsel and Member Assistance Programs
• Developing materials for lawyer and paralegal candidates and Principals to more overtly address the issue of harassment and discrimination in the professions
• Engaging with stakeholders and sharing best practices
• Continuing to offer and develop relevant CPD Programs
• Augmenting data collection processes to better track progress
...