End Unpaid Articling

  • May 24, 2017
  • Richa Sandill

Position pays $100 a week – transportation fees negotiable.” – Advertisement on Law Society’s Articling Registry circa 2015

So this position is unpaid, but we are prepared to pay half your bar licensing fees!” – Real life interview I had in November 2014

“What makes you think you are so good that you deserve to actually get paid for articling?” – A fellow NCA student (who argued with me for half an hour that it was not worth trying to find a paid position)

Honestly as an NCA student I just don’t see you getting articling. Why don’t you volunteer for your articles? It’s all about the experience anyways, isn’t it?” – Well-meaning colleagues ____________________________________________________________________________________

The Law Society of Upper Canada’s Dialogue on Licensing consultations are now in full swing. For those who may not be aware, these consultations are a large part of the Law Society’s process to reform how lawyers are licensed. Last month, it launched a series of in-person and webcast discussion groups in an effort to understand the current realities, challenges, and opportunities of the lawyer licensing process in Ontario. I attended the first consultation in Toronto a few weeks ago.

In my journey from law graduate to employment lawyer, I have heard all of the comments described above. They were an unfortunate part of the realities and challenges that I faced during my licensing process.

I studied law abroad at University College London, in England. When I returned home in 2013, I began the National Committee on Accreditation’s (“NCA”) accreditation process, intending to develop a practice where I would advocate on the ground and make meaningful change in my clients’ lives. First, however, I had to contend with the two pressing hurdles of being a “foreign trained” candidate, and the constant murmurs of an articling crisis.

The unique challenges that NCA candidates face were quickly apparent as I became involved with the OBA and began speaking to more practitioners. I recall one very well-meaning and helpful lawyer who spoke to their firm to see if they could hire me, only to be informed that the firm did not want to hire a graduate from a non-Canadian law school.

Then, I realized that even if I did find a firm that wanted to hire me, compensation could range anywhere from a Bay Street salary to a bus pass. There was also the chance that I might be not be paid  anything at all; a particularly harsh option since I would work the same or similar hours as an articling student on Bay Street who would be paid $70,000. It took two years, one amazing firm, two incredibly supportive Partners that believed in my potential, inexplicable luck, and a lot of networking before I found my articling placement in 2015. I still have not forgotten how it could have turned out.

Given that articling students, as trainees for the legal profession, are exempt from most Employment Standards Act, 2000 protections pursuant to the Exemptions, Special Rules, and Establishment of Minimum Wage regulation of the Act, unpaid articling is legal. Chapter 6 of the Law Society’s Rules of Professional Conduct, the Law Society of Upper Canada’s By-Law 4 on Licensing, and the Law Society Act are also silent on whether students can and should be paid, in spite of extensive guides and provisions on the licensing process, and the relationships between lawyers and law students.

There is very little formal research on the number of students currently completing their articles in unpaid positions. Andrew Langille, my colleague on the Canadian Intern Association’s Executive Committee, wrote a 2012 article on whether Articling Students are entitled to Minimum Wage, which  was perhaps one of the most informative resources I could find on this topic. In the article, Andrew states that the Law Society’s 2012 Pathways Report on Articling briefly mentioned unpaid articles once. Sure enough, there is only a short footnote on page 29 of the Report, stating that “unpaid articling positions continue to be offered and, as students become more pressured to find a placement, accepted.

Given the lack of formal research, I decided to reach out to my own networks to learn about others’ experiences. I spoke to a small mix of recent participants in the Ontario licensing process: half were graduates of Canadian law schools, and half were NCA students.[1] All told stories that left me bewildered.

My Canadian law school friends recall peers confiding in them of the shame and embarrassment they felt when they didn’t have something lined up in their third year of law school. I heard stories about an articling student working, for free, out of a lawyer’s basement and having to provide childcare for their principal when the lawyer was out.

NCA students told similar stories, if not filled with more precarious work. For example, volunteering at firms during their NCA exam process and then articling at that firm for free after being unable to find a paid position, even though clients were being billed for their work. I was told about several people being expected to cover for the receptionist or assistant if those individuals took vacations or went home early. By the way, these receptionists and assistants were paid.

One NCA friend told me that the vast majority of advertised articling positions she saw were unpaid. I had firsthand knowledge of this: when I was searching for articles, the Law Society’s Articling Registry regularly advertised unpaid or extremely low paid articles in 2014 and 2015. Yet another NCA student, currently completing unpaid articles at a firm outside of Toronto, said that this sense of despair has translated into a lot of pressure for NCA students to article for free.

“Honestly, there’s more people than you would realize who are taking on unpaid articles because they feel like they have no choice as an NCA – and they probably won’t admit it openly either.” This person told me that out of the 30 or so NCA students that they know, only four were remunerated for their articling term. I was one of them. This person also knows of a top-billed practitioner in the Peel Region who had taken on an articling student for no pay.

“I’ve heard of people getting $20 for lunch money every day. And that’s really it in terms of wages.” This person even told me that the firm made them pay disbursements on files and cases out of their own pocket. This student recalled one scenario where they had to pay $750 in cash for a real estate closing fee, for which the firm never reimbursed them. The only way they could do this, they said, was because they had the support of their parents. “If I didn’t have parents who were willing to support me, then honestly law would have been too expensive for me to continue with.”

During the NCA process, I met so many diverse, entrepreneurial, dedicated individuals who had come from all walks of life to this profession, including young students like myself at the time, and mid-career professionals. I will never forget the women I met who were networking, supporting a family as newcomers to Canada, and, some, writing exams while taking care of newborns. Perhaps the saddest story I heard was of the NCA student who, as a newcomer to Canada, volunteered with a firm for a year, completed unpaid articles, but was not ultimately offered a position and the firm refused to assist with their Permanent Residency application. In the end, the NCA student could not find an employer willing to assist with their application, lost hope and left Canada. My unproven hypothesis is that a significant number of racialized individuals and women are accepting precarious articling positions because they see no other opportunities to enter the profession.

These problems are not limited to small firms. Another student who attended a Canadian law school, earning top grades and winning numerous academic prizes, told me that they did not receive an offer after the second year OCI process, or after interviews during third year. When a reputable downtown Toronto law firm offered them a position, the salary was for only $15,000. Moreover, the firm was unwilling to assist with licensing fees. For most licensing candidates, this amounts to approximately $4870 – in other words, a third of this person’s pay for their entire term. With no other options, the student accepted the position. The student acknowledged that this was only feasible because they had parental support. Regardless, the experience left the student feeling undervalued and demoralized. “It still felt shameful the entire time. It makes you feel like you are not as good as everyone else for some reason, and that you deserve less.”  This student has since built a successful practice with another firm, but looking back, can see the inequality of bargaining power between a law student in need of a job and the law firm offering the position. 

There are a few tangible things that could effect change. First, the Law Society could require articling principals to report whether they pay students. At a minimum, this will provide data to track this phenomenon. Second, even if the ESA exempts lawyers from minimum wage, the Law Society could raise unpaid articling positions as a professional conduct issue.  Third, the LSUC could investigate and report on the precarious conditions students experience during articling as part of the ongoing lawyer licensing consultation process.

My intent is not to demonize anyone or any firm. There are many firms that mentor and nurture their articling students, and not all firms can afford to pay high salaries. But some firms are taking unfair advantage of the ESA exemptions for articling students and lawyers. There is a generation of law students and licensing candidates – the future of the profession – that are being let down, and there are law firms and lawyers who are taking advantage of their vulnerability. We, as a profession, are condoning inequality by allowing unpaid and extremely low paid articling to take place in this manner.

How can we prepare young people to be the advocates of the future when they are asked not to value themselves in the present?

About the author

Richa Sandill is an Associate Lawyer at Rudner MacDonald LLP, and a member of the OBA Women Lawyers Forum Executive Committee.

Any article or other information or content expressed or made available in this Section is that of the respective author and not of the OBA. 

[1] All interviewees agreed to speak on the condition that they be kept anonymous.

[0] Comments