COVER

Privilege and Pressure

VICTOR DWYER October 6 1997
COVER

Privilege and Pressure

VICTOR DWYER October 6 1997

Privilege and Pressure

COVER

VICTOR DWYER

Even on a campus renowned for its architecture, the four imposing mansions that house McGill University’s faculty of law are dauntingly impressive. Their location on stately Peel Street, just a stone’s throw from the commercial bustle and gritty neon of downtown Montreal, only underscores their look of studied remove—an almost wilful obliviousness to the world outside their iron gates. But just inside the largest of the four, seated in a spacious panelled common room, final-year law student Martin Valasek makes it clear that the outside world is on his mind. ‘This is an exciting and rewarding place, but a very tense place, too,” says Valasek, who has an undergraduate degree from Harvard University. “Picture 200 Type A personalities, each thinking about life after law school, and each knowing that surviving six months at a time may be a truly terrifying experience.” Peppering his conversation with terms like “lawyer glut” and “dismal hire-back ratios,” he completes the thought. “Law stu-

dents are a very privileged group—we all know that,” says Valasek. “But the pressure begins on the first day of class, and it does not seem to end.”

Privilege and pressure. They are two words that, as well as any, sum up the rarefied world of Canadian legal education—and the high-stress lives of those who have managed to secure a place within it. Certainly there is no denying the privilege. Only a small minority even make it through the door. Once inside, they are given the tools to translate their broad skills into an excellent income, impressive connections and considerable job satisfaction. But neither is there denying the pressure. As Valasek implies, Canada’s law schools can be intellectual sweatshops. And political minefields, too, riven by deep divisions between students determined to challenge and even remake the justice system, and those who want simply to carve out a comfortable career within it. And if law school can be tense, the profession is even more so, as famous in the 1990s for its lack of job security as or its time-honored and punishing workloads. “If there is one onstant in the practice of law, it is hard work,” says lawyer Rosemary Basham, who runs the Vancouver firm Basham & Co. “I see nany young lawyers who are talented, who know the law, but who lon’t have the perseverance to work full out, all the time. These lays, doing 90 per cent isn’t enough.”

But for all the conflict, uncertainty and toil, the 6,400 students it Canada’s 16 common-law schools can count themselves among he favored few. At some schools, four out of five who apply to take in LLB degree are turned away. Many institutions require a solid V average and a score in the top 20 per cent of those who write the jtfN School Admission Test (LSAT). And demand is growing ony more heated. Deans everywhere describe a sharp rise in the lumber of graduates applying from the hard sciences, as well as hose with master’s degrees and PhDs. At the University of Vicoria, market pressure has pushed up average entering grades 6.5 per cent and DSAT scores by almost 15 per cent in just L0 years. “The competition,” says Dean David Cohen, “is fierce.”

Once on the road to a degree, students ;an look forward to a good shot at a cozy iving. A recent survey by the Law Soci-

îty of Upper Canada found that civil litigators now earn an average of $131,000 a year. For labor lawyers, the figure is 1140,000; for patent lawyers, $167,000—a figure that is only a raction of what senior partners in major firms can take home mnually. Even immigration attorneys, many of whom work with ess affluent clients, pocket a respectable $62,000 on average.

For those who play their cards right, law can also be a ticket to he halls of corporate and political power. Jean Chrétien hardly îeeded a law degree to become Prime Minister, but he does have me. So do five of his cabinet ministers, and several of his prede:essors—in all, six of the previous eight prime ministers. And t is lawyers who head many of the nation’s largest corporations: )avid O’Brien at Canadian Pacific, Brian Levitt at Imasco, d au reen Kempston Darkes at General Motors. That track record s not lost on today’s students. “For me,” says Valasek, “law chool is a place to learn where rules are made and power rests.”

More so, it seems, than ever before. Increasingly, law schools

At some schools, four out of five are turned away

are offering students the chance to take home double-barrelled credentials—teaming up with other faculties to offer joint degrees in everything from environmental studies to international relations. At several schools, including Toronto, Dalhousie in Halifax, Ottawa and York’s Osgoode Hall, up to a 10th of students now eschew a simple law degree, putting in an extra year at the faculty of business to earn the formidable LLB/MBA. Cindy McGann graduated with just such a degree from Ottawa in 1992, and now manages the litigation department at computer software giant Corel Corp. in Nepean, Ont., where she also advises the company on broader areas of corporate strategy. “I make legal decisions,” says McGann. “But I am also invited to weigh in on the risks and opportunities involved, and to have a real voice on the bigger picture.”

Law can also pave the way to a different kind of power—the power to advocate, quite literally, for important social causes and less advantaged social groups. Just 10 km from Corel’s headquarters, Philippa Lawson, who graduated from Queen’s in 1989, is co-chief counsel to the Public Interest Advocacy Centre. “In terms of lifestyle, I have never been interested in the high-powered road,” says Lawson, who has gone to bat for, among others, the National Anti-Poverty Organization, the Canadian Seniors Network and the Consumers’ Association of Canada. “In the private sector, most lawyers have to take the work that comes to them,” says Lawson. “For me, job satisfaction means feeling like I’m on the right side of things.” But if a law degree can provide the entrée to a lucrative and satisfying life, it is also a life of substantial effort, grinding stress—and, occasionally, naked terror. And it all begins long before law students head into their first moot court. Along with the need to produce those stellar undergraduate transcripts, law school applicants must sit the LSAT, a three-hour marathon of mind-bending word games, math exercises and writing skills. Once at law school, students face a highly competitive atmosphere where, say many, the priw mar y law that applies is that of the jungle. I “I see very high levels of individual anxid ety,” says McGill law professor Patrick I Glenn. Among the evidence: an increase I in vandalism, as students tear out the û pages of library books to gain an edge on ^ their peers.

Then there is the workload. In first year, course offerings are mandatory, brutal—and, say some, brutally boring: property law, administrative law, contracts, torts. And on the heels of an undergraduate degree that has become increasingly expensive, students face three more years of minimal income coupled with the usual outlays on tuition, books and living. A survey conducted in 1995 by a three-member student committee at the University of Toronto found that 37 per cent of law students brought debt with them into law school—compared with just 19 per cent two years earlier. According to the survey, the average law student planned to go $18,000 deeper into the red before finishing their course work and heading out to article.

And while virtually all students are able to secure articling positions—the mandatory 12-month apprenticeships that effectively constitute a fourth year of law school—in 1996 only 39 per cent of graduates in Ontario were offered a follow-up job with the same employer, according to a survey conducted by the Law Society of Upper Canada. Just eight years earlier, the figure was roughly 50 per cent. Such hire-back rates, as they are known, are a bellwether of employment prospects across the profession. Not uncommon are stories like that of Kevin Thompson, a University of Toronto graduate called to the bar in 1996. When his articling firm, Toronto’s Golden, Green & Chercover, failed to hire him back, Thompson “began a lot of cold calling,” and spent eight months “bouncing from contract to contract,” doing legal research and short projects for, among others, a small litigation firm and a real estate company. Dispirited by the experience, he has now started his own firm, specializing in construction, engineering and intellectual property law, with a fellow lawyer. “I went into law school thinking that job prospects were far better than for people with BAs and MAs,” says Thompson. “I came out realizing it is far more difficult than I had first anticipated.”

The blame, say critics, lies in large part with the law faculties themselves. In Ontario alone, the number of lawyers has risen to 24,800 this year from 10,500 in 1976, at a time when the population has grown only 30 per cent. Canada as a whole has 60,000. Each year, roughly 2,000 more common-law lawyers hit the market. And while the law societies of British Columbia,

Ontario and Quebec have all endured highly charged debates in recent years about limiting the number of new lawyers entering the profession, each has ruled decisively against such a move.

Heading into a crowded market, graduates also find themselves defending their turf against a growing army of professionals specializing in so-called alternative dispute resolution. Often with only a college diploma or BA in legal studies, they are horning into everything from child custody battles to labor disputes. Governments, meanwhile, are only helping to hasten the stampede of clients away from lawyers’ offices. New reforms in Ontario require most lawsuits to attempt mediation before heading to court. There and elsewhere, legislation enshrining such things as no-fault divorce and no-fault automobile insurance is making short order of lengthy legal disputes. Across Canada, McGann: a the downsizing of legal aid is forcing many litigants to drop their cases entirely. Says Margaret Sasges, past chairman of the Young Lawyers Conference of the Canadian Bar Association: “Established lawyers are saying, ‘I am worked to death.’ Young ones are asking, ‘Where’s the work?’ ”

That question, in fact, lies at the heart of a major debate about the scope and shape of legal education that has gripped Canadian law schools. On one side are those demanding that law faculties admit only the most academically accomplished and arm them with the so-called black letter basics—the principles and precepts of Canadian legal doctrine, and the skills to translate them into practice. Others insist that law schools must open their doors to historically disenfranchised groups, put more energy into analyzing fundamental issues of justice, and create courses that reflect a greater variety of human experience. The debate is propelled not simply by the stress of a tight market, but by the wildly divergent aims and interests of those who pursue a legal education. “In a business school, almost everyone is concerned with economic issues, and usually with making corporations more effective,” notes Queen’s professor Nick Bala. “Here, we have people deeply committed to many other issues and points of view.”

Just ask Eileen Gillese. When she was appointed dean of law at the University of Western Ontario in London last year, she faced a school known for its impassioned debates on such issues. One of her first official acts was to ask her faculty council committee, which is composed of students and professors, to undertake a re-

port on curriculum change. ‘We are not a trade school, but ther is a huge part of our student body that simply wants to practise law, says Gillese. “The trick is giving people the skills to fill in a mon gage form and to reflect.” The report, released this past June is short on specifics. But it does include a series of principles aimec among other things, at striking a balance “between material covei ing doctrine and that covering context or perspectives.” And i calls for greater openness to “different, even conflicting ideas am ideologies.”

While some schools—most notably Windsor and Calgaryactually seek out students with a history of social and communit involvement, most scramble to fill the vast majority of their seat with those who have top grades and LSATs. And most ur abashedly defend their right to do so. ‘To focus on other things i to open yourself up to questionable calls,” says University c Alberta Dean Lewis Klar. Others argue that standardized me; sures are, in their own way, democratic. “This is not medical schoo where applicants come with more or less one educational ped gree,” says Toronto Dean Ron Daniels. “The strength of the LSA is that it allows us to draw in students from across the sciences, th liberal arts and commerce.”

In fact, some legal educators say that, in a profession as cor servative as law, admitting too many applicants from less trad tional backgrounds may be setting them up for a fall. Since it wa established in 1989, 48 students have graduated from the uniqu Black, Indigenous and Mi’kmaq program at Dalhousie. But a faculty study released this past June revealed that, while many had found work in legal aid offices and as counsel to native organizations, only a tiny minority had been able to secure jobs with private sector firms.

In the 1990s, law schools can be intellectual sweatshops—and political minefields

In Ontario, meanwhile, 44 per cent of the 129 graduates unable to land fall articling jobs by mid-August of last year were either disabled, aboriginal or members of visible minorities—although such groups make up only 18 per cent of graduates. “The law schools have worked hard,” says Toronto criminal lawyer Clayton Ruby, who is also one of 40 benchers elected to govern the Law Society of Upper Canada. “But the profession has failed miserably

with these students, who often find themselves jobless and in major debt. It’s simply unacceptable.”

Female graduates face their own obstacles—even though women occupy roughly half the seats in Canadian law faculties, and have succeeded in making feminist legal theory a standard offering in most calendars. A 1996 report by the Law Society of Upper Canada, entitled "Women in a Changing Legal Profession,” found that women were making only 60 per cent of men’s salaries in some areas of law. And the wage ghetto comes with its own glass ceiling: only 13.5 per cent of women had been awarded partnership status in their firms; the figure for men was 30 per cent. “No matter how much law schools change who and what they teach,” says Dean Stephen Toope of McGill, “the real issue may be that we are leading certain groups on, and then dropping them into a system that refuses to change.”

How Canada’s law graduates are dropped into that system is also a matter of substantial controversy. Articling, the obligatory year of on-the-job training that precedes entry into the profession,

can make for high anxiety. Tight times in the profession have created major competition for jobs that pay well, and with firms and agencies with a track record of offering permanent jobs. Adding to the pressure is the gnawing certainty that, whether the field is civil litigation or civil liberties, prestige is paramount. “Articling is the beauty pageant that sets the stage for what comes later,” says Ontario Appeal Court Justice Rosalie Abella. ‘Where you article, the kind of experience you have is very much a predictor of the opportunities you’ll get.”

As a result, landing an articling position is as fraught with tension as the all-or-nothing final exams for which law schools are famous. In almost every province, students are matched with employers through a rule-laden process dictated by the local law society. In Ontario, for example, initial interviews usually take place the third week of August, starting at 8 a.m., Monday, for openings in September of the following year. During interviews, says Karla Brady, a recruiter at Toronto firm Osler Hoskin & Harcourt, “firms are strictly forbidden to ask students where they want to article most.” Osier interviews roughly 100 of the 700 who apply from across Canada—with the aim of taking between 25 and 30 students—and submits its top choices to the law society. Students do the same. One week later, the society lets both sides know who will work where.

While landing a position is often nervewracking, articling itself can be a sobering reality check. “I definitely didn’t get enough of the practical stuff before that stage,” says Liz Liu, a 1990 graduate of UBC who is now a litigator at Vancouver’s Basham & Co. “You get a law degree, you’re sent out to article and you have absolutely no idea what it is lawyers actually do.” She and others also question how much articling, in turn, prepares graduates for a life in the profession. “When I went to 1 school, lawyers spent a great deal of time with d students,” says University of Calgary Dean I Michael Wylie. “But with firms so focused on | the bottom line, that isn’t always the case anyd more.” Certainly Liu felt that she did not get * the broad experience she would have liked. “Unless you really searched stuff out,” she recalls, “it was pretty hard to get on a neat file that actually went to court.”

Part of the problem, say many, is the bottom-line mentality that pervades the profession. “Law has become a business,” says Toope. “Not so long ago, it was a profession”— and one in which more experienced lawyers were expected to mentor their younger colleagues, both at the articling stage and beyond. To fill the breach, several law schools are now beefing up their course calendars with an ambitious range of certificate and graduate courses. Among the leaders has been Osgoode, which in 1995 significantly expanded its part-time master’s program. It now enrols 400 practising lawyers in 10 areas, including international trade and competition law, taxation law and alternative dispute resolution. “The medical profession has been doing this kind of thing for some time,” says Dean Marilyn Pilkington. “It’s high time law did as well.”

Meanwhile, frustration with articling has led to an even broader debate: whether the entire road to a legal career needs to be shortened. “Demanding that students take four years of university before they even get here needs rethinking,” argues Wylie. “It has become the norm only because of the competitive nature of the process.” In the eyes of many, articling does little more than add another year of penury to students already in debt. Osier Hoskins & Harcourt pays students in their Toronto office $45,500 for their 12-month stint. But the law societies of British Columbia and Ontario have in recent years found students articling for no pay at all. McGill’s Glenn says he knows of some who have worked for $50 a week in downtown Montreal. “Law school is a long, expensive process,” says Abella. “It may be time to examine other less financially prohibitive ways of doing it.”

Still, with demand for the LLB so high, it is unlikely that schools will lower the requirements of entry—into their programs or the profession— anytime soon. In fact, demand is so great that some deans are now discussing whether they should follow the lead of their counterparts in business faculties, and deregulate tuition.

The idea was floated by the Council of Ontario Universities as far back as 1993. At Queen’s, Prof. Bala says schools “have been feeling informal pressure, from governments, to go in that direction.” And although Pilkington has decried a notion that she says “assumes all law students will all get prestigious, high-paying jobs,” some other deans predict that the cost of a law degree will rise dramatically in the next few years.

One of those is Toronto’s Daniels. In recent years, he notes, Ottawa has sliced transfer payments to the provinces for higher education, health and social services. “It is a gap,” says

Daniels, “that cannot be bridged by d imagination alone.” And it is one that | is leaving Canadian law schools more ° poorly funded than ever against their 5 main competition. U.S. faculties spend “ between $35,000 and $55,000 annually “ on every law student; the comparable figure in Canada is $11,000. The result, says Daniels: many of Canada’s very best students are jumping ship. The evidence: of those who turned down an offer of admission at Toronto this year, more went to Harvard than to any single Canadian law school.

Anticipating the green light to raise fees significantly some time in the next several years, Toronto is already working to implement what it calls a “back-end” loan program. Under the scheme, graduates who have borrowed for their degrees will be offered interest relief—and ideally some help with payments on the principal— from a special fund raised through alumni donations. The only requirement: they must earn an income below a specific level (which has yet to be determined) and work in such public interest areas of the profession as refugee centres, women’s shelters and community legal clinics.

That attempt to channel more lawyers towards public service careers may well be a defining characteristic of Canada’s law schools as they head into the next century. In recent years, many law faculties have opened community legal clinics, where students gain credit for volunteering advice to those who could not otherwise afford it. Osgoode, which has several such clinics across Met-

Does the road to a legal career need to be shortened?

ropolitan Toronto, is set to open another next month to provide free legal advice to small business owners who have been referred there by social service agencies. At the University of New Brunswick, which Dean Anne LaForest says is too small to support its own clinic, the law school has begun encouraging students to volunteer their time at the Fredericton Legal Aid Centre by giving credit for term papers about the experience. Just last month, a group of UNB students formed the Poverty Law Society to co-ordinate student shifts at the clinic.

That hands-on approach to law clearly serves an important teaching function as well. “I came into law school with this Perry

Mason, big-glamor view,” says Rob Bowman, one of several students who landed a position at Queen’s legal aid clinic this past summer. “This was the first time I got my hands dirty with things like shoplifting cases, drunk-driving charges, bar fights—what for many people out there is the real world of law.”

In the end, Bowman’s words, and his changing perspective, speak eloquently of what may be law school’s greatest strength. The exhausting workloads, the highly charged debates, the unvarnished experience of articling and clinical work all make for a crucible of sorts. “I think the main thing a legal education helps you develop is the importance of asking yourself the difficult questions,” says former Ontario premier Bob Rae, a 1977 Toronto graduate and now a partner at the downtown firm of Goodman, Phillips and Vineberg. “It forces students to look at things from a number of points of view, and to take nothing at face value.”

Including their own futures. “Anything can happen here,” says McGill student Valasek, who this term is heading to the Czech Republic to do his final year of law at Prague’s Charles University. “I mean, some people who came here looking to save the environment and the underprivileged people of the world will do that. But some of them are now looking into becoming lawyers for major firms,” says Valasek. “The point is, if you make it through a law degree, you can do any of those things. Or at least, you can try.”