This article was originally published in Maclean's Magazine on February 9, 2009
Where's a Lawyer When You Need One?
Some days, Marla Miller's phone just doesn't stop ringing. People call her FAMILY LAW practice in Edmonton all day long, trying to find a lawyer to hire, but there aren't any available. "We can't even call them all back. We're too busy," says Miller, a collaborative family lawyer and mediator. "It's really problematic. Even if someone has an emerging situation, or court pending, sometimes you just have to say, 'Good luck, sorry. We're not taking any more clients.' "
Miller's office isn't the only one fielding desperate calls. In Edmonton and Calgary, family lawyers are refusing to take on new cases, keeping closed client lists just as a family doctor would, says David Percy, dean of the University of Alberta law faculty. "We send out emails seeing if other lawyers are taking clients," Miller says, but even if there are some available, "within two weeks, they're booked up." While Alberta's boom has aggravated the situation, other parts of the country report they're facing a lawyer shortage, too, especially rural areas.
For Percy, the root of the problem is clear. "In the last several years, there's been a strong argument Canada does not graduate enough lawyers," he says. Prevailing wisdom might suggest that fewer lawyers is a good thing, but observers worry it's just the opposite, driving up the cost of legal services by restricting the number of people who can provide them. As with any other product, "the price of [legal services] is a function of supply and demand," says Vern Krishna, a lawyer and law professor at the University of Ottawa. When it comes to lawyers, "we have a deliberately constrained supply," he says. "Our law schools have shut their doors tight."
Over the past 30 years, Canada's population and its need for legal services has ballooned, yet the number of law students who graduate each year is "virtually unchanged," notes Krishna. Today, Canada has 16 common law schools, the same number it had three decades ago, when the population was smaller by a third. While some schools have opened extra spaces, the impact has been minimal - in 2006, 2,973 law students were admitted to the profession, just 133 more than a decade before.
John G. Kelly runs Canada Law from Abroad, which links Canadian students with law schools in the U.K. He says Canada, with a population of over 33 million, has the lowest number of law schools per capita of any Commonwealth country: in a 2007 survey, he found that the U.K. has 75 law schools for a population of nearly 61 million, while Australia has 28 law schools, and 21 million people. Naturally, Canada also has a small supply of lawyers. Here, there's about one lawyer or notary for every 421 people. In the U.S., it's one lawyer for every 265 people.
It's not that there aren't enough Canadians who want to be lawyers: some faculties get 10 applicants per spot, or more. Getting accepted, then, is a fiercely competitive process. Even at schools that require just two years of undergraduate education to apply, it's hard to find a student without a bachelor's degree or higher. At the University of Toronto, where law students must have a B.A., almost one-quarter have a graduate degree, too. The median average for entrants is 85 per cent. "Academic standards to get into Canadian law schools are far higher than any other common law country I know of," Percy says.
For the thousands of Canadians who don't get accepted each year - many of whom, undoubtedly, would make perfectly fine lawyers - studying abroad is an attractive option, and foreign schools are only too happy to take them. Of the 750 law students at Bond University in Australia, over 100 are from Canada. The school even teaches Canadian constitutional law, and will begin offering Canadian corporate and tax law this year, "not because they're fascinated by it; they've got a market," says Krishna, executive director of the Federation of Law Societies' accreditation committee, who notes that steps are now being taken to make it easier for foreign-trained lawyers to practise here. About 200 qualify to work here each year, including Canadians who have studied abroad.
Getting a degree is, of course, just one step to becoming a lawyer. Provincial law societies (lawyers' self-regulating bodies) require new graduates complete a bar admission course and articling period, yet both vary in length across the country (the course is six months in Alberta, but just six weeks in Nova Scotia; articling requirements vary from six months to a year). This suggests "entry requirements may have been set, in some instances, at a higher than necessary level," further restricting the lawyer supply, notes a 2007 report from the federal Competition Bureau. (A response report prepared for the law societies dismissed this as "trivial," in part because lawyers can move between provinces.)
For Canada's aspiring lawyers, the bar to entry is set high. Given their unique responsibilities, that's not necessarily a bad thing - except if it skews who enters the profession, and the career path they take. To attend a Canadian law school, "you have to come from a well-off family that can afford to support you through seven years of university," Kelly says. Those who can pay a tutor for the Law School Admission Test, or can afford to shell out the money to study abroad (Bond's Canadian students pay a whopping $22,000 in tuition alone), are also at an advantage.
In Ontario, where law school tuition was deregulated in 1997, two-thirds of law students come from the wealthiest 40 per cent of families in the province, a 2004 study found, and just 10 per cent from the bottom 40. Meanwhile, about 30 per cent of second-year law students with debt said the money they owe will have a "substantial effect" on their careers, pushing them into high-paying jobs instead of public service, or work in more remote communities.
As Ontario law school tuition skyrocketed, the number of graduates looking to take jobs in lower-paying public law fields (including criminal and family) has taken a dive, says Frank Addario, president of the Criminal Lawyers' Association. "Top students are finding the money, and relief from law school debts, to be irresistible," he says. A first-year associate at a large private practice firm in downtown Toronto makes up to $105,000, plus bonuses as high as 30 per cent, according to ZSA Legal Recruitment. In Montreal and Vancouver, base pay is up to $93,000, and in Calgary it's $77,000. With salaries like that on offer, who'd want to hang out a shingle in Kapuskasing?
Law schools have long fought the notion they're merely a conveyor belt to big firm jobs. The University of Toronto, for example, offers Canada's only back-end debt relief program, which helps students choosing lower-income employment to pay off their loans. Schools host public law career fairs, run legal aid clinics, and provide other opportunities to learn about what's seen as alternative work. But some say the ivory tower could do more to make legal education accessible. Ryerson University is now considering opening a law faculty that would offer flexible, part-time courses, says Julia Hanigsberg, its general counsel and secretary of the board. Although part-time law programs are rare in Canada, they might attract a more diverse student body - new immigrants, mature students returning to the workforce - who'd pursue a more diverse practice of law, she argues. And, because they could work part-time, "they leave law school with smaller debt loads and greater freedom to choose public interest or other lower-paying careers," says David Chavkin, a professor the American University Washington College of Law.
Ironically, attracting a more diverse student body was exactly what Lakehead University was trying to do: it recently advanced a proposal for a new law school in Thunder Bay, one that would attract northern and Aboriginal students, and retain more lawyers in the area. "What we hear from students, particularly Aboriginal students, is that they want a base closer to home," says president Fred Gilbert, who notes that all six of the province's law schools are in the south.
In fact, Lakehead was just one of four Ontario universities (excluding Ryerson) that had new law faculties on the drawing board. But last year, the provincial government denied funding to all of them, concluding that demand from the student side hasn't increased enough to justify it (in 2007, 4,469 people applied to Ontario law schools, almost 1,000 more than 10 years before). And the Law Society of Upper Canada warned there may not be enough articling spaces for new students anyway. (Lakehead's independent survey identified enough articling jobs to meet the needs of the 55 law students it hopes to admit each year, Gilbert says.) Extra funding for law schools is rarely popular with government, notes Krishna: "Do we say there's not enough residency [positions], so we're not going to train more doctors?"
Despite the growing number of experts who say Canada needs more lawyers, there's one powerful group that disagrees - the lawyers themselves. "It is simplistic to think that the high cost of legal services and problems of access to justice can be solved by simply adding more lawyers to the market," says Malcolm Heins, CEO of the Law Society of Upper Canada, who notes that legal services are still costly in the U.S., even though they have more lawyers per capita.
Yet Canada's lawyer supply is so very restricted, and access to justice remains a struggle for so many, that it seems adding more legal service providers must be part of the solution. "We know there's the demand from the student side. We know there's the demand from people who need legal services," Hanigsberg says. "One can't help but look at that and say, how can it be that we don't need more lawyers?"
Maclean's February 9, 2009