Legal Excellence Program Evaluation, Final Report

4. KEY FINDINGS

This section of the report examines key findings of the evaluation with respect to the rationale and continued relevance of the Program; the extent to which the program design is appropriate to support the objectives of the LEP; and what has happened as a result of the Program.

4.1 Program Rationale and Continued Relevance

The articling market environment is dynamic. It changes with the economy, labour market, demographics and social values of the time, as many informants noted. The pressures and challenges that existed eight years ago still exist today and, in some ways, have become even more acute with the increasing number of people retiring.

New challenges have since emerged in the Canadian context. Globalization, the explosion of information technologies, economic prosperity, which has generated increased commercial activities of the recent past, and concerns of terrorist threats have increased the need for legal services. However, the supply of law graduates has not kept pace with the change and there is a shortage of lawyers in Canada. This shortage has caused the cost of legal services to go up significantly [7].

Over the past decade, the salary level for lawyers in the private sector has been rising while that of lawyers in the public sector has been lagging behind. For example, the weekly pay for an articling student can be as high as $1,600 in a large law firm in Toronto whereas it is $750 at the DOJ; the annual salary for a first-year associate can be as high as $115,000 but only about $60,000 at the DOJ[8] . According to key informants, some provincial ministries of Justice have increased the salary level for their lawyers to the extent that there are substantial salary gaps between the provincial and federal government lawyers at the entry and junior levels. Thus, lawyers who prefer to work in the public sector can continue do so with increased wages and comparable benefits by working for a provincial government.

According to the 2008 Public Service Employee Survey, federal lawyers in the LA category reported considerable uncertainty about staying in the public service. Of the 1,612 lawyers who responded to the survey, 9 percent reported that they are thinking of leaving their department or agency in the next two years and 14 percent within five years. Thirty-four percent said they are not sure if they will stay with or leave their current organization in the next two years. Most of those who are thinking of leaving intended to pursue a career in another department or agency or outside of the federal government. Approximately 26 percent reported that salary and benefits were the most important reason to leave and an additional 19 percent reported this as either their second or third most important reason to leave.

In addition, the DOJ is facing another significant challenge. Following decisions taken as part of the Strategic Review, the Department plans to increase the proportion of entry-level lawyers in its legal staff by 11 percent[9] . The Department has just announced a temporary hiring pause of its intermediate and senior level counsel (LA-2A and up).

Given these changing realities and challenges, the DOJ will continue to need a reliable source of entry-level lawyers to replenish its workforce. The LEP is more relevant now than ever.

While the managers who were interviewed regarded the LEP as a reliable, efficient and effective mechanism for recruiting future lawyers, they dismissed the LEP program objective to meet short-term staffing needs. They reasoned that although articling students can alleviate some short-term work pressures, the emphasis must be on their education as it is an investment and obligation towards the profession.

4.2 Program Design

Through the LEP, the DOJ articling program changed from an entirely ad hoc hiring mechanism in which individual managers hired articling students as needed and as resources permitted, to a series of regionally managed programs operating within a national program framework and title.

Initially, the LEP was headed by a senior counsel who had exceptional leadership and communication skills. While this individual was responsible for managing the NCR LEP, he also assumed the role of the Program champion. Under his leadership and with the help of a common program Website, the DOJ’s visibility and image as a “good place” for articling students improved. Following his departure, this individual was not replaced; the Program no longer had a recognized spokesperson. The NCR HQ has been unable to continue to provide leadership and support to the collective LEP as it has never been resourced to do this. Directors of Career Services at the law schools reported that the visibility of the LEP as a national program has weakened since the departure of the Program’s “figurehead or spokesperson”.

Since the termination of the guaranteed hire-back policy in most regions, the continued existence of the Program as a national initiative has been called into question by a few key informants. From their perspective, the LEP was first thought of as a national program because of the guaranteed hire-back policy; since the policy is no longer in effect on a national scale, there is nothing to hold the Program together any longer. One region went as far as to question the necessity of the LEP altogether by saying that they would do exactly the same thing with or without the Program. It is clear from these statements that it is not widely known that the majority of articling students are hired by the Department post-articles.

Many basic elements of a national initiative are absent from the LEP, including a clearly articulated governance structure; dedicated resources; common policies, principles, standards or practices; or a capacity to monitor progress and to report on results across the Department. While the LEP is part of the DOJ HR Management Plan 2007-2010, no explicit recruitment targets have been set. It is worth noting that few key informants were aware that the LEP is part of the Department’s overall HR plan.

The Director General, HRPDD is accountable for the LEP but has limited authority over much of the Program spending or hiring decisions. That there is such an apparent disconnect between this individual’s responsibility and authority is something that warrants review from a corporate perspective.

Several regions suggested that there is a need to lay out fundamental principles or an overall framework for the LEP on a national level with regard to promotion and marketing but to leave the recruitment function, the crux of the Program, to the individual regions. Each province’s Law Society sets the rules for articling students. Consequently, the LEP must deal with different sets of rules and constraints in each province. Since the regional offices understand these needs and constraints best, it makes sense that they continue to have a significant role in the recruitment and hiring of articling students who are likely to be hired as LA-01s post-articles.

Some LEP coordinators reported that they wanted more guidance and consistency on various issues such as the “bridging” process between summer students and articling students. Two regions went even further as to suggest that HQ should play a more active role in supporting the program operations, such as providing basic student orientation and training, and HR training for interviewers.

Key informants agreed that the Program needs a central coordination unit and clearer roles and responsibilities for all parties involved; a common vision and a framework for the Program as a national initiative; and flexibility in program implementation. It is clear that there is a need for a more coherent and coordinated approach to the management of the LEP.

4.3 Recruitment

The LEP has attracted a significant number of applicants for articling positions in the DOJ. Between 2006 and 2009, the Department received 3,973 applications for a total of 231 articling positions. On average, the Department hires between 50 and 70 articling students a year. While the number of applicants has remained relatively constant during this period, the number of hires has increased modestly in last two years, with most of this increase in BC and Ontario. The NCR and OROs receive more than half of the applications for articling students and a comparable proportion of the hires. The NCR hired more than any other region. The Northern Region formalized its articling program in 2007-2008, with the hiring of one student in Yellowknife. It plans to recruit one student in each of the three northern offices by the fiscal year 2011-2012.[10]

Table 4: Articling Student Applications and Hires by Region and Year

Atlantic
  2006 2007 2008 2009 Total
Number % Number % Number % Number % Number %
Hired 1 5% 1 5% 1 3% 1 4% 4 4%
Applied 22 19 30 24[11] 95

Quebec
  2006 2007 2008 2009 Total
Number % Number % Number % Number % Number %
Hired 5 4% 6 4% 6 3% 6 3% 23 3%
Applied 120 165 192 192 669

NCR
  2006 2007 2008 2009 Total
Number % Number % Number % Number % Number %
Hired 18 7% 20 8% 21 9% 21 8% 80 8%
Applied 260 244 244 266 1014

Ontario
  2006 2007 2008 2009 Total
Number % Number % Number % Number % Number %
Hired 9 3% 9 3% 12 5% 14 6% 44 4%
Applied 298 298 251 221 1068

Prairie
  2006 2007 2008 2009 Total
Number % Number % Number % Number % Number %
Hired 9 6% 7 5% 11 8% 11 6% 38 6%
Applied 142 141 134 188 605[12]

BC
  2006 2007 2008 2009 Total
Number % Number % Number % Number % Number %
Hired 8 10% 7 5% 10 8% 15 14% 40 9%
Applied 77 131 133 109 450

Northern
  2006 2007 2008 2009 Total
Number % Number % Number % Number % Number %
Hired 0 n/a 0 n/a 1 .02% 1 .03% 2 .03%
Applied 0 0 41 31 72

Total
  2006 2007 2008 2009 Total
Number % Number % Number % Number % Number %
Hired 50 5% 50 5% 62 5% 69 6% 231 6%
Applied 919 998 1025 1031 3973

According to the survey, 26 percent of managers indicated that they could recall instances when they would have liked an articling student to work in their section but could not get one. This would suggest that there may be demand in the system for more articling students in the future. When managers were asked what factors influenced their decision to offer placement opportunities for articling students, 82 percent of the respondents regarded the availability of appropriate work for students as the most important factor, followed by staffing need (60 percent). The availability of both supervisors and space was a factor but was not viewed as a serious obstacle; solutions could generally be found.

4.3.1 Calibre of LEP Recruits

Overwhelmingly, the key informants were positive about the calibre of the LEP articling students and described them as being bright, with diverse non-legal experience and maturity, competent and eager to learn. An important benefit, pointed out by many manager informants, is that LEP-trained students are better prepared for and more likely to have a long and satisfying career in the Public Service because they tend to be more attuned to the “all of government”perspective. An added benefit is that managers are able to assess the capacity and the personal suitability of their articling students as potential employees in a real setting over a period of time; and they can bypass the onerous and often lengthy HR hiring process, upon the students’ successful completion of their articles and admission to the Bar, as the student has already been hired as part of a competitive process.

In the survey of managers (Figure 1), Motivation/Dedication was ranked the most important quality for a lawyer, closely followed by dependability, communication skills, adaptability, integrity and capacity to be a team-player. Ambition was the least sought-after quality. Managers also identified other qualities as being important, such as: practical experience, flexibility, cultural sensitivity, good judgement, work ethics, loyalty, thoroughness, personal suitability and sense of humour.

Figure 1: When hiring a lawyer, the level of importance attributed to each of the following qualities

Figure 1: When hiring a lawyer, the level of importance attributed to each of the following qualities

Description of Figure 1

Note: For the purpose of this analysis, the lower end of the scale (1, 2 and 3) was combined as well as the higher end (5, 6 and 7).

4.3.2 Contributions to LA-01 Recruitment

Although the LEP is a proven method to recruit high-quality entry-level lawyers, it is not providing sufficient numbers of new recruits to support DOJ’s current or projected staffing needs, particularly since the implementation of the Law Practice Model. Between 2006-2007 and 2008-2009, the people hired following their articles in the LEP represented 38 percent of the total hires of LA-01s in the Department (Table 5).

Table 5: Number of LA-01 hired through the LEP and from outside posting for the years 2006-2007 to 2008 2009
  Fiscal Year Source of LA-01 Total hires % LEP hires
LEP Outside LEP
Atlantic 2006-2007 1 3 4 25%
2007-2008 1 3 4 25%
2008-2009 1 7 8 12%
Atlantic total   3 13 16 19%
Quebec 2006-2007 5 3 8 63%
2007-2008 5 3 8 63%
2008-2009 5 10 15 33%
Quebec total   15 16 31 48%
NCR 2006-2007 14 26 40 35%
2007-2008 17 42 59 29%
2008-2009 18 55 73 25%
NCR total   49 123 172 28%
Ontario 2006-2007 8 13 21 38%
2007-2008 8 12 20 40%
2008-2009 9 14 23 39%
Ontario total   25 39 64 39%
Prairie 2006-2007 7 10 17 41%
2007-2008 7 1 8 88%
2008-2009 5 6 11 45%
Prairie total   19 17 36 53%
British Columbia 2006-2007 7 7 14 50%
2007-2008 8 6 14 57%
2008-2009 11 6 17 65%
BC total   26 19 45 58%
North 2006-2007 0 0 0  
2007-2008 0 1 1 0%
2008-2009 1 2 3 33%
North total   1 3 4 25%
Total   138 230 368 38%

There are a number of reasons behind the relatively low numbers of LEP hires. Until recently, it has been unclear how many LA-01s are needed by the Department in the longer term. Staffing through the LEP is challenging because it requires a planning horizon of two years or longer, counting from the time of recruiting articling students to the point of post-article job placement. For example, if a student were hired by the LEP upon the completion of second year law school in June 2009, this individual must complete the third year of study before starting the articling term in July 2010. The individual is expected to complete the articles in July 2011, when he is eligible to be hired as a LA-01. Moreover, because there have been no ongoing dedicated resources for the Program in the regions, recruitment of articling students has tended to remain constant, irrespective of the increase in demand for entry-level lawyers. Some regions reported that they planned to raise their level of recruitment in FY 2009-2010.

Budget uncertainty and difficulties in projecting staffing needs are not the only explanations for under-recruiting, according to some managers and LEP informants. The LEP produces graduates once a year. Situations arise that require immediate staffing actions for fully qualified entry-level lawyers (e.g. staff turnover, sick leave, sudden increase of workload). Some LEP coordinators have expressed the concern that it would not be in the Department’s best interest to only hire LEP graduates; that in so doing, it could overlook some talented individuals who did not article with the DOJ but who would be welcome additions to the staff complement.

While it is neither possible nor appropriate to suggest that the LEP be the exclusive source of LA-01s, it will be important for the Department to consider the appropriate role for the Program in light of the other recruitment programs in the DOJ, recent changes to LA hiring policies and the overall HR plan.

4.3.3 Summer Student Employment Programs as a Recruitment Strategy

Increasingly, summer student programs are used as a recruitment strategy because this allows the recruitment process to start earlier. Although strict rules are imposed by the provincial law societies on the timing of interviewing articling students, fewer restrictions are placed on the timing of recruiting summer students, except in Ontario where the same restrictions apply to the hiring of both summer students and articling students. In recent years, students have been interviewed on the campus and offered summer employment opportunities at the DOJ following the first year of law school; these positions can often lead to articling positions.

Currently, the BC, Prairie and Ontario regions offer a summer student program[13]. In the BC Region, summer students are given the opportunity of being interviewed for an articling position before external candidates. In the Ontario Region, summer students are “bridged over” to articling student positions. In the Prairie Region, the process to hire summer students is separate from that of articling students. In the NCR and Quebec regions, civil law students who have obtained an articling position are offered work in the summer prior to their articles, but there is no active recruitment of summer law students for the purpose of feeding into the articling pool.

With NCR offering the greatest variety of articling opportunities, a concern was expressed that if HQ were to start a summer law student program, it may create a situation or perception that they are favouring local residents. The reason is that summer law students recruited through the LEP do have advantages over others in becoming articling students. In this view, the issue of fairness could become a concern for residents in other parts of the country. However, if the LEP is managed more as a national program, students from across the country would be encouraged to apply for articling positions in any DOJ office.

There are advantages to sponsoring summer programs for law students for the Department. Since interviews for summer students can start months earlier than those for articling students, the probability of getting top candidates through summer programs is likely to be higher. One regional office expressed the view that students interviewed for summer positions are of much higher calibre than those interviewed for articling positions. In their view, better students tend to get summer jobs and are likely to return or be invited back for articles by their summer job employers.

4.3.4 Other Recruitment Considerations

4.3.4.1 Employment equity

According to the LEP informants, while the Program has not been required to meet any targets to recruit members of the Employment Equity (EE) designated groups, EE has been an important consideration for managers and LEP coordinators in the selection of candidates. The Department of Justice Employment Equity Progress Report, 2008-2009 indicated that for that period, the LEP recruitment rates were proportionally higher for all but one of the designated groups compared with the total new hires in the LA category and employees in the Department as a whole (see Table 6).

Table 6: EE Representation among new LEP hires compared with total new hires in the LA category and the Department of Justice as a whole in 2008 2009
Designated Group LEP
(n=64)		 LEP
%		 Total New LA Hires (n=235) Total New LA Hires
%		 DOJ DOJ
%
Visible minorities 10 15.6 37 15.7 683 13.9
Persons with disabilities 6 9.4 9 3.8 296 6.0
Aboriginal Peoples 5 7.8 7 3.0 184 3.7
4.3.4.2 Official language requirements

The second official language requirements do not apply to LEP recruitment, except in Quebec where applicants have to pass second official language tests of the Public Service to qualify for an articling position. In the NCR [14], the need for bilingual capacity is greater; however, it is logistically difficult to implement language tests because of the time constraint, i.e., hiring decisions and offers have to be made before the testing can be arranged in most cases. As a result, the NCR assesses the official language proficiency of its articling students around the middle of the articling term.

4.3.4.3 Interview process

The key stage in recruiting students is the interview process. The interview provides the most direct and personal contact between the Program staff and candidates and gives both the potential employer and the potential employee an opportunity to assess and form an impression of each other through face-to-face contact. The Department must respect both the hiring requirements not only of the individual law societies but also those of the federal Public Service. As a result, the DOJ interview style is different from that of private law firms; it is a competitive process that is more structured and substantive. “Students are being wooed at other firms, yet they are being quizzed at the government”, a student commented. Despite these differences, students did not seem to object. In fact, according to the Directors of Career Services, students who are really interested in the DOJ may be intimidated but generally not deterred by the interview process. Furthermore, this process supports the impression that the Department has high professional standards for its workforce.

While such reporting was not common or widespread, there were a few instances in which students expressed disappointment about the way they were treated during the interview process. To maintain a neutral and impartial position, LEP interviewers are not supposed to reveal anything about how the student is doing by way of words or facial expressions. In addition, they are expected to record the students’ responses in as much detail as possible. “There is no rapport built between the student and interviewer because the interview is more like an exam”, complained a student. A few students also reported they experienced some challenges with scheduling interviews.

This may be an area for DOJ to reconsider its communication strategy and to provide more information to prospective interview candidates about the interview process and what the Department expects. There may also be opportunities to provide training for interviewers to ensure that the students are made to feel comfortable during the process while all the rules are being respected. Some students suggested that a “warm-up” prior to the actual interview, during which the candidate is informed about what to expect, could help avoid surprises and establish some rapport between the interviewers and the interviewee.