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Barbara Murchie, Chair of the Professional Development and Competence Committee

LSO divided on paying articling students minimum wage, defers decision to provide time for input

Monday, November 29, 2021 @ 3:56 PM | By Amanda Jerome

Last Updated: Monday, December 06, 2021 @ 3:44 PM

In a debate about mandating firms to pay articling students minimum wage, the Law Society of Ontario (LSO) highlighted the tough situation facing the profession. With a backlog of candidates and a dearth of articling positions, the benchers were divided on whether to enforce a minimum wage if it might put placements in jeopardy.

After almost two hours of discussion, Convocation approved three measures to improve the training component of the licensing process but deferred making a decision on minimum wage to a later date.

Barbara Murchie, Chair of the Professional Development and Competence Committee

Barbara Murchie, chair of the Professional Development and Competence Committee, presented the motion to “replace the enhancements to the experiential training component of the lawyer licensing process, as approved by Convocation in December 2018,” with four measures, including: 1) the LSO developing “an orientation program for articling principals, work placement supervisors, and licensing candidates to facilitate effective and fair experiential training, to be encouraged rather than mandatory;” 2) the law society leveraging “the new Bridge to Practice platform to foster entry level competence and skills by developing free training modules designed for candidates and new lawyers and focused on filling the identified gaps in articling placements such as practice management and client communications;” 3) the LSO applying “a risk-based approach to monitoring of experiential training by initiating outreach to both the candidate and the principal where placements end prematurely;” and 4) the LSO adopting a “best practices approach to compensation which encourages rather than requires that all experiential training placements be paid …”

In her remarks, Murchie noted that the enhancements adopted by Convocation in 2018 “resulted from an extensive consultation with the profession and with students.” The consultation indicated that while “a majority of articling and LPP (Law Practice Program) placements provided effective learning opportunities for candidates” there were also concerns, she said, noting that “almost one in five candidates were reporting harassment, discrimination or mistreatment during articles” and “some placements did not provide adequate remuneration.”

She explained that in 2018, Convocation “approved mandatory training and orientation for principals and supervisors, random law society audits of placements, and mandatory minimum compensation for articling and LPP students.”

“We know enhancements are needed,” she said, noting however that the committee recently “considered whether the 2018 enhancements are still appropriate.”

Most of the committee concluded that the 2018 enhancements “were too focused on regulatory requirements that would jeopardize placement positions and unnecessarily impact the placements and principal who were successfully training candidates in a respectful workplace,” Murchie explained.

“In determining what was appropriate, the committee considered the impact of COVID on the entire profession and that economic uncertainty persisted. The committee recognized that the number of articling positions was inadequate in general and that the number of positions has not kept up with the increase in the number of candidates in the last five years,” she said, stressing that the “number of candidates has increased by 18 per cent, but the number of articling positions has stayed about the same.”

She also noted that “currently there are about 500 candidates from the prior three years that are still looking for articling positions.”

In addressing the “best practices approach to compensation” section of the motion, Murchie noted that “at today’s minimum wage of $15 an hour,” a placement would cost “about $600 a week.”

“A four-month LPP placement would cost about $10,400 in salary,” she added, noting that an eight-month placement would cost about $20,800, and 10-month placement would cost $26,000.

“The committee recommends replacing the mandatory minimum compensation with simply encouraged minimum compensation. The committee discussed this issue at length. We heard from the Law Students Society of Ontario, who have long maintained that students should be paid,” she said, noting that while the committee agrees that placements should be paid, the majority recommended against mandating payment because of its impact on the availability of placements.

“The law society estimates that about 130-150 placements are unpaid or minimally paid and are at risk. The estimate is uncertain because the law society does not currently require that firms disclose the salaries they pay their articling placements. But data from our candidate survey indicates that the majority of unpaid or minimally paid placements are in sole and small firm settings and soles and smalls provide 500-600 placements a year,” she added, noting that articling placements are “vulnerable to economic conditions.”

Murchie explained that “during the pandemic we lost about 170 articling positions, over 70 of them in soles and smalls.”

“And although those placements appear to be returning this year, the backlog and shortage of placements that I referred to earlier still continue,” she added.

Atrisha Lewis, LSO Bencher

Bencher Atrisha Lewis requested that the issue of compensation be divided from the motion so that benchers could vote on the three quality enhancements separately.

“Articling students are some of the most vulnerable members of our profession,” Lewis said, noting there’s a “power imbalance” between articling students and their principals.

“Currently, students are not protected by the Employment Standards Act,” she added, stressing that it’s “incumbent upon the law society to do the very minimum to ensure that the most vulnerable are protected.”

Lewis suggested the LSO can take steps to prevent the loss of articling positions while maintaining the 2018 decision on minimum wage for placements.

She noted that the LSO can provided exemptions, so that “if there is a situation where there’s a high-quality placement that supports and serves vulnerable populations, principals can apply for exemptions to paying a minimum salary.”

Lewis also had process concerns, noting that the issue of compensation is of interest to the profession and the public, but neither had been provided with an opportunity to give feedback.

Gerard Charette, LSO Bencher

Gerard Charette, a bencher based in Windsor, said he’d spoken to members of the bar locally, and he believes “minimum wage is a real job killer.”

“We need to get focused on getting careers launched,” he said, adding that “if anything, we need to streamline our rules and make it easier, especially for smaller firms, to hire young articling candidates.”

“It’s hard to find lawyers in small town Ontario. It really becomes an access to justice issue,” Charette stressed, noting that minimum wage and “complicated audits” interfere in “getting Ontario serviced with good quality lawyers across the province.”

Appointed bencher Nancy Lockhart said she was “quite surprised” when she read the committee’s report because “unpaid internships had been outlawed in Ontario some time ago,” except for in secondary school work experience programs.

“I personally think we shouldn’t be building the profession on the backs of students and there should be some provision for pay,” she added.

Bencher Megan Shortreed also “struggled” with the report, noting that “the shortage of placements is a problem that is created by maintaining a market-driven barrier to entry.”

“The absence of adequate opportunities is a different and larger problem that isn’t solved by forcing vulnerable applicants into unpaid work,” she added.

Bencher Lubomir Poliacik supported the report and was “very surprised” to hear comments from benchers suggesting that articling students are being exploited.

“As past principal in a small firm, I can tell you it’s very difficult for a small firm to break even on an articling student, never mind making money. The large firms can do it because they hope to hire them back,” he said, noting that small firms aren’t hiring their students.

“The amount of time that a principal spends with an articling student completely outweighs any contribution that an articling student makes to the firm, at least that has been my experience,” Poliacik said, stressing that articling is “not a job.”

“It’s a training. It’s education, primarily,” he explained.

Bencher Joseph Chiummiento noted that the “predominant amount of articling students are hired by solos and small firms.” Based on the numbers for this year, he noted, that’s approximately “72 per cent” of placements.

He also noted that currently “there are 40 firms of 51 or more lawyers,” which are the largest law firms in Ontario, hiring approximately 36 articling students.

“That’s less than one articling position for each large law firm,” he added, stressing that it’s “time for Bay Street to step up and start hiring.”

[Editor’s note: Chiummiento’s comments misinterpreted the data in the report. According to the LSO, there were 310 placements in large firms (firms of 200-plus lawyers) compared to 586 placements in soles/small settings (firms of 1-5 lawyers).]

“I think we need to issue a bit of a wake-up call and press on some of those issues,” he explained.

After acknowledging the lengthy and intense debate, treasurer Teresa Donnelly agreed with Lewis that the issue of minimum wage should be deferred. Lewis stressed that the LSO owes it to the profession and the public to “provide their opinion on this.” Murchie agreed to differ that part of the motion, so that input from the profession could be received.

Charette and Chiummiento didn’t think the items in the motion should be segregated and that the whole report should be deferred. Their motion to defer a vote on the whole report failed 42-9, with one abstention.

Convocation then voted to pass the first three enhancements listed in the motion. The vote carried 49-2 with one abstention.

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