Law and border
On Thursday March 6th, 2008Print
On Thursday March 6th, 2008Print
Naomi Loewith and Kris Borg-Olivier are Canadians who trained abroad and faced course work, exams, and months of articling when they returned to Canada. Given all the red tape they faced, we’re lucky they bothered to come home.
Once Naomi Loewith decided she wanted to be a lawyer, everything seemed to fall into place. Upon graduating from the University of Western Ontario, the Ancaster, Ontario, farm girl was accepted to Harvard Law. During her studies, she worked with the International Criminal Tribunal for Rwanda. When she graduated from Harvard, she was granted a clerkship with Justice Morris Fish at the Supreme Court of Canada. She entertained a couple of offers from Manhattan firms, but decided she wanted to come home for good. She had a stellar legal education and, in her clerkship, the best articling gig in the country. Or so she thought.
Like all foreign-educated lawyers seeking to practice in Canada, Loewith applied to the National Committee on Accreditation (NCA) to have her education considered “equivalent” to a Canadian law degree. “They told me I needed four courses,” she recalls, “none of which were mandatory courses for Canadian law students.” Still, it amounted to about a full semester of study, which wasn’t so bad. She enrolled in the self-taught course run by the University of Ottawa and completed her studies during her clerkship. That’s when her luck ran out: the Law Society of Upper Canada informed her that her Supreme Court work would not count toward her articles. Their reason: the rules state that she must complete her educational equivalency before commencing the articling process.
Loewith was frustrated. “What qualified as articling for every other clerk didn’t for me.” Undeterred, she found an articling position with Lenczner Slaght Royce Smith Griffin LLP in Toronto, held her nose to the grindstone and finished the process. In the end, the Law Society gave her three weeks’ credit for her 12-month clerkship, so she could make the next call to the bar. All told, the licensing process ate up two years of her life. “I graduated in the spring of 2005. I was called to the bar in September of 2007. And it’s not like I took a few months off — I was working that whole time.”
Loewith, now an associate at Lenczner Slaght, is not alone. Canadians are now studying law abroad in record numbers, which has led to a corresponding increase in nightmarish tales of red-tape entanglements with the NCA and the Law Society when they try to come back home. And their stories pale in comparison to those practicing lawyers who’ve immigrated from overseas, only to be told they must effectively start their legal education from scratch. The articling stage is just as problematic — the ranks of those seeking admission to the bar are swelling, but the number of articling positions is not.
The situation has now reached its tipping point. A recent Law Society report stated that the projected increase in applicants for articling positions “will have a serious effect on the viability of the current licensing process. This issue has an urgency to it that cannot be ignored.” Last year both the Law Society and the NCA convened task forces to review all aspects of the licensing and accreditation process. Diana Miles, the Law Society’s Director of Professional Development and Competence, met with the large Bay Street firms that create most of the articling positions to discuss the situation; they, in turn, formed a committee of their own. Among the options listed in the Law Society task force’s January report: the complete elimination of the articling program.
Yet while changes to the licensing and accreditation system are clearly on the horizon, at the heart of the debate lies a fundamental contradiction. As a licensing body, the Law Society acts as both gatekeeper and facilitator. It’s the organization that sets and enforces the barriers to entry into the legal profession, but is also supposed to be the one that helps lawyers chart a smooth career path into practice. As in Loewith’s case, many young lawyers have had a lopsided experience: too much hindrance, not enough help.
“The Canadian model is the most liberal regime in the world for accrediting foreign-trained lawyers.” So says University of Ottawa professor Vern Krishna, the executive director of the NCA. The seven-member committee is a creation of the Federation of Law Societies of Canada — each law society has delegated to the NCA the job of evaluating the legal education of foreign-trained lawyers who apply to practise here. The NCA’s offices are located at the University of Ottawa, where three full-time staff assist Dr. Krishna with the 500-plus applications it receives annually. Unlike many other jurisdictions, Canada considers every single applicant. By contrast, only four US states will recognize a Canadian law degree, while in India, only Indian citizens with law degrees from Indian universities may practise. That said, some jurisdictions are much more readily accessible to international applicants; they also happen to be the most appealing and most lucrative. Both New York and California recognize Canadian law degrees — all that’s required to practise in either state is to pass a rigorous bar examination. Meanwhile, little additional training is required to practice as a solicitor in the United Kingdom, the world’s pre-eminent centre of corporate law.
What sets the Canadian system apart is its willingness to evaluate every single application on its individual merits, no matter where the applicant studied law. Despite many applicants’ impression that the NCA is some kind of black box — you send them your papers and up to two months later they send you a letter listing the courses you must take — Dr. Krishna insists the process is neither cumbersome nor mysterious. “The question we ask is, ‘What should each applicant do to top up their education?’ We must ensure that all foreign educated lawyers meet the same standards as Canadian law graduates.”
In 2007 the number of NCA applicants hit a record high of 532, a 19-percent increase above the previous year and more than double the 261 who applied in 2001. Dr. Krishna attributes the increase directly to Canadian graduates who are turned away by this country’s law schools and decide to go abroad to pursue a legal education, then return home. (The NCA treats Canadians no different than foreigners in this process. What matters is not citizenship, but the quality of each applicant’s legal education.) Notably, the number of applicants from Australia has more than doubled in just two years, up to 42 last year from 19 in 2005. It’s largely due to the influence of Bond University, a private institution that recruits actively in Canada. “Bond University has been very enterprising,” Dr. Krishna says. “Bond is doing what our provincial governments will not do, which is make room for all worthy candidates in our law schools. We turn away lots of deserving students.”
And when they come back as graduates, they only intensify the competition for articling positions, which is why the Law Society’s Task Force has put forward the option of eliminating articles completely. But Dr. Krishna, who also chairs the Law Society’s Task Force, says that eliminating articles is only one option among many, and that the Task Force has thus far placed more emphasis on the possibility of expanding the variety of activities that would qualify as articles, so that more graduates could find their way to the bar.
The lingering question is whether the Law Society will change its guidelines for crediting foreign legal experience toward articling. Currently, even the most experienced international lawyers must conduct at least four months of articling in Ontario, and the Law Society can be parsimonious in extending credit. Loewith’s colleague at Lenczner Slaght, Kris Borg-Olivier, graduated Harvard Law in 2000 and worked as an attorney for four years with Debevoise & Plimpton in Manhattan before finally coming home to Canada. While the NCA required him to take only two exams, his experience counted for little with the Law Society: he received one month of articling credit for every full year of experience, and he still had to take the Skills and Professional Responsibility course, which he describes as a very well-run and well-taught course that would be excellent for a recent graduate, but that taught him nothing. “I already knew how to present myself to a client, write a proper memo, and conduct efficient research.”
The Task Force goes even further, concluding that the Skills and PR course is largely redundant, and ought to be discontinued.
The truth is that if Borg-Olivier hadn’t always planned to come home, he probably wouldn’t have bothered. He had four years of practise in Manhattan under his belt, and was well on his way to a successful international law career. Returning to Canada entailed thousands of dollars in fees and a five-figure pay cut. “I felt the clock was ticking,” he says. “If I reached too senior a level, firms would be less likely to hire me as an articling student. It was now or never.”
Meanwhile, many of those who let their clock run out feel they can’t go home again. Shawn Atkinson left Ontario to study law in England back in 1998; today he counsels on international mergers and acquisitions for Kirkland & Ellis in London. He’s had numerous offers from Bay Street, but the uncertainty of the process has kept him away. “When I inquired about it, the Law Society was unhelpful, and so was the NCA,” he says. “And I would come home for what?” Today, as a lawyer in England, he can work in the European Union, Australia, New Zealand, and just about anywhere in the developing world. With a three-month crash course he could pass the bar exam in New York or California. But Canada’s high cost of admission is discouraging, even for Canadians who want to come home, and Canada just can’t offer the same volume of large, international deals.
The Task Force’s consultations will continue until the end of May, just as another new crop of law graduates begin their careers. With so many talented Canadians now studying law internationally, many will choose to work internationally as well, especially when there simply aren’t enough articling jobs to go around. Combine that with the whirlwind of international recruiting that’s plucking mid-level associates out of Canadian firms by the dozens. If they all begin to feel like Shawn Atkinson does — that the work abroad is often more exciting, and that returning seems like a hassle — then Ontario’s legal community could be staring at the beginnings of a brain drain. In an increasingly global labour market for lawyers, Canada needs foreign lawyers to relocate here and Canadian lawyers to come home. The Law Society’s decision to reform the process comes at a time when the stakes have never been higher.
Photography by Lee Towndrow