Law Graduates Churned Out At Risk of Extortion while Indifferent Profession Yawns

23 November 2015 | Elise Margow

Law graduates to be charged $22,000 for articles screamed the headlines and for the first time since graduating myself I took the time to read an entire article about law graduates.

According to a mainstream newspaper, an entrepreneurial South Australian law firm has developed what they believe to be a market worthy business model under which law graduates would be charged $22,000 for the privilege of working for the firm as articled clerks. The inventiveness of the law firm does not end there. Not only would articled clerks pay for their employment but in order to receive any remuneration at all, they would have to bring fee-earning clients into the firm and hopefully earn commission on fees paid by said clients. In summary, the firm would in essence compete with accredited practical legal training providers, such as the Leo Cussen Institute and The College of Law, while at the same time gaining free labour and new clients too.

Gobsmacked at the sheer chutzpah of this proposition, I pondered how the legal profession had regressed to a point where prospective lawyers might be required to pay a substantial sum to clerk at a law firm without a realistic chance of being remunerated.

Legal Warriors no longer conquering

Many lawyers when asked about their articled clerk experiences will begin by regaling the listener with tales about the horrors of searching for articles and how as legal warriors they fought all obstacles to articles put in their way by the profession.

When law students complain about their difficulties in finding articles, these self-proclaimed legal warriors smile condescendingly and say plus ca change, plus c'est la meme chose or if not feeling too pretentious will say nothing much has changed since I was a young flapper. Work hard, be determined and fight through the interminable application processes like us and you too will win those articles and become a certified practitioner one day, they exclaim.

However, it would seem that these days determination and hard work no matter how warrior-like will not necessarily assist budding lawyers in gaining their clerkship/traineeship. The number of graduates seeking articles has increased to such an extent that even accredited practical legal training centres such as the College of Law or Leo Cussen Institute are filled to capacity, leaving many wannabe lawyers stranded. Enter the enterprising South Australian law firm that has gauged such desperation within the articled clerk market that they believe graduates will pay a substantial sum to be articled at a law firm and work for free. Perhaps they are right. From my observations even law students with academic scores through the stratosphere and resumes that would be the pride of Mother Theresa, Cathy Freeman, Zubin Mehta and Warren Buffet combined are battling to find articles within law firms. What hope the average law student?

Paying for the privilege of working for a law firm

I am all in favour of entrepreneurship in the law. In general we are a 'fuddy-duddy' profession bent on procedural rules and regulations. It is therefore refreshing to discover lawyers creating business models outside the legal square. Yet somehow law firms charging law graduates for the privilege of articles makes me feel quite bilious. Here are some of the reasons why:

1. Although during the nineteenth and early twentieth centuries legal apprentices paid for the privilege of clerking in a law firm, an apprenticeship was a substitute for studying at a law school. Fast forward one hundred years and prospective lawyers are required to obtain at least one university degree replete with legal subjects. In this environment, the concept of a law firm charging university graduates for clerkships is either an indictment on the type of education students are getting at law schools and/or potentially could be regarded as a method of extorting money from vulnerable students who form part of a saturated market.
2. Salaries paid to articled clerks tend to be pretty low and after two months, a well performing articled clerk will generally pay their way if not by billable fees then at least by freeing up more experienced lawyer to bill clients.
3. Don't we as a profession have some sort of responsibility to train and mentor fledgling lawyers without being remunerated for our time?
4. Finally, imagine the furore if hospitals charged medical graduates for internships and insisted that these graduates had to find their own patients in order to be paid some form of remuneration? In this context people would say that this is worse than slave labour as the slave actually has to pay to provide labour. Why are law graduates less worthy of outrage?

Is there something really rotten in the state of legal training?

In some respects, we should be thanking the South Australian law firm for their innovative if somewhat cringe-worthy ideas about the future of article clerkships. These innovators have highlighted the need for a long awaited serious discussion about the state of play in legal training and the grim future for law graduates.

As more and more law schools open up across Australia, law firms are hiring less and less articled clerks. As the profession closes the door on the majority of graduates, accredited training institutions cannot meet the overflowing demand. This in turn opens the door for what could be considered the potential extortion of graduates desperate to become lawyers.

Those of us who were graduates when the majority who wanted articles procured articles have a duty to stand with graduates being churned out of law schools. We who have had the benefit of experience should be asking probing questions and requiring substantive answers from those responsible for law schools and accreditation of solicitors/barristers. From my perspective these questions include:

• What is the purpose of a law school if the majority of its graduates will not in the future have the opportunity to become qualified lawyers should they wish to do so even with the advent of supervised workplace training institutions such as The College of Law and Leo Cussen Institute?
• What is the future of our profession if mainly those who obtain stratospheric marks at university or who are lucky enough to be born into excessive money or powerful connections will have the opportunity to gain articles experience at a law firm?
• Where are we heading as a profession when certain law firms honestly believe that it is appropriate for graduates who have no legal experience to be tendering for legal work in order to earn a commission?
• How do we as a profession become more innovative in providing experience and training to law graduates in a manner that will not be seen by some as endeavouring to extort money from them or taking unfair advantage of their desperation for practical training and accreditation?

Articled clerks safe from having to pay a fee for the time being

The Law Society of South Australia were quite speechless when confronted by the media about the articled clerk charging model put forward by one of their more innovative law firms. Finally it is reported that after investigation the Law Society determined that a two-year paid training and employment programme instituted by a law firm may not allow an employee to demonstrate a "continuous period of two years full time employment as an employed practitioner." (No kidding.) Therefore the model proposed is currently not approved as an accredited manner of obtaining articles.

Pound of flesh, soul and your bank account as well

It is a truth universally acknowledged that law firms are allowed to obtain their 'pound of flesh' from law graduates desperate for articled clerkships (traineeships). That pound of flesh in the past consisted of working crazy hours for a measly salary in order to gain experience and the opportunity to be admitted as a solicitor. If we as a profession do not do something very soon about the saturation of law graduates on the market going forward, law graduates might well have to provide their pound of working flesh, their souls and their earthly savings to law firms as well. How did we come to this?