Be Nice to an Articling Student Day
I read an article recently that posits that mandatory articling periods put women at greater risk of sexual harassment: “Women, The Articling Term, and Sexual Harassment: A Critical Analysis of Protective Legislation, Codes of Conduct, and Regulatory Bodies” .
I agree with the author’s thesis—some articling arrangements put vulnerable students in jeopardy—but the risk is not just to women, and the danger is broader than sexual harassment. But the analysis and result are the same: articling students are vulnerable both during their job hunt and during their clerkships, to use an archaic term (which sounds slightly better than indentured servitude, and there is a limit to how many times I can use the word “articling” in a paragraph!)
When I was an articling student in 1986, sexual harassment had not been recognized as prohibited conduct in Canada. The defining case was the Supreme Court of Canada decision in Janzen v. Platy Enterprises Ltd. in 1989. I was too busy practicing law in a predominantly male practice area to be following legal developments relating to sexual harassment, and my line was that sexual harassment was a working condition at a law firm in the 1980s. There was no recourse, so you managed yourself and your files to reduce your interaction with repeat offenders, but of course this was no solution.
After the Janzen decision, law firms, like other employers, instituted Sexual Harassment Policies, and I was honoured to be invited to serve as the associate representative on my firm’s new sexual harassment committee. We received complaints, conducted investigations and made decisions with respect to allegations of sexual harassment—and it was so much more meaningful and interesting than corporate finance, where I had been trying to insert my square-pegged self into a round hole. A couple of years later, I was presented with the opportunity to be half of a job share, as Senior Corporate Counsel, overseeing the Human Resources portfolio, in a multinational company. Part of this position involved guiding the corporation, which had a healthy harassment policy, through investigations, resolutions, amendments and education. A dream job on so many fronts!
My corporation, like most employers in the early 1990s, had policies prohibiting harassment on all grounds covered by human rights legislation. You see, this was where sexual harassment fit into the legal landscape of the day. The easiest (but a bit facile) explanation is that employers could not discriminate against employees on the basis of sex (does this sound like a movie about RBG?), and harassment constituted discrimination.
In order for a corporate policy to be effective, it had to be communicated to all employees and kept alive through regular communications and leadership actions. As you can imagine, in a large corporation with multiple sites in Canada and around the world, there were pockets of resistance and downright defiance and intransigence. I was a true believer in anti-harassment culture and worked diligently as part of a multi-disciplinary team to educate our workforce.
This was not an easy task. A few years into regular communication with all employees, another lawyer came to chat with me about a job description for a site within his client portfolio. There was just one problem with it—it used the word “able-bodied.” I explained that this appeared to be denying opportunities to individuals with physical disabilities. The other lawyer said that the position was in a plant environment. I asked if the successful individual would have to climb ladders and catwalks (trying to imagine what a plant environment looked like!) and he said no, but it was a plant, with lots of equipment everywhere. I explained that there had to be a bona fide occupational requirement for unlimited mobility or it was discriminatory. It turns out that the position was in an office within the plant environment—so no BFOR or BFOQ—but I am sharing this story to make the point that human rights law, like most areas of law, continue to grow and develop, and it is hard for everyone to be on top of everything.
But it has been more than thirty years since I first became involved with harassment law, and I thought we would have made bigger strides towards full-on equality in workplaces. I saw egregious situations—one of which resulted in a lawsuit against my corporation for wrongful dismissal, which we won—but I also saw that some harassing behaviours were driven underground, where there were no witnesses and perhaps some plausible deniability.
At Assist, my role with individuals experiencing harassment has undergone a further development—I am now on the support side, and I am disappointed to hear some of the experiences of junior (and sometimes not so junior) members of our profession. But I am not always convinced that lawyers, like the inhouse counsel I mentioned, have much sensitivity to harassment issues and their professional obligations.
Alberta’s Code of Conduct has prohibited harassment and discrimination for many years. Here is what the current version of the Code says:
6.3 Harassment and Discrimination
6.3-1 The principles of human rights laws and related case law apply to the interpretation of this rule.
6.3-2 A term used in this rule that is defined in human rights legislation has the same meaning as in the legislation.
6.3-3 A lawyer must not sexually harass any person.
6.3-4 A lawyer must not engage in any other form of harassment of any person.
6.3-5 A lawyer must not discriminate against any person.
Commentary [1] A lawyer has a special responsibility to respect the requirements of human rights laws in force in Canada, its provinces and territories and, specifically, to honour the obligations enumerated in human rights laws.
But just as having an anti-harassment policy did not magically eliminate harassment in corporations, this part of the Code has not eliminated harassment and discrimination in the legal community.
In 2019, the results of a survey of young lawyers and articling students in Alberta, Saskatchewan and Manitoba was released.
Here is an excerpt from the survey results, outlining one of the key findings:
- 32% Experience Discrimination and/or Harassment during Recruitment or Articling
- Most discrimination and harassment is primarily based on gender or race/ethnicity. Articling students feel:
- Resources are not available to address discrimination and harassment concerns.
- The process to deal with discrimination and harassment will negatively impact them.
Assist responded to this information with a two-part strategy. First, we unveiled pop-up peer support sessions at or near courthouses where students and junior lawyers could sit down and chat with a senior lawyer about issues they were experiencing. These became known as Red Mug Coffee Circles as volunteers had red mugs for identification purposes, and in April of 2020, we took Red Mug Coffee Circles online to provide support during the pandemic. While we hope to relaunch the original pop-up peer support sessions, we will not be taking RMCC offline as we have created a thriving community of people across the province and looking to come to Alberta.
Our second initiative was the articling student call-out. Assist peer support volunteers—about 80 of them! —place personal phone calls to all Alberta articling students to let them know that there are lawyers who care about them as well as how to access our programs. Most of the students appreciate the calls, and each year we meet several who are in extremely difficult situations who we connect with resources and support. In 2022-23, we called more than 530 students!
I am pleased to announce our third articling student initiative: How Assist Helps Articling Students, a webinar on Friday, September 8th at noon, where a panel of recent and slightly less recent new lawyers share strategies for dealing with stress and challenging circumstances during articles. I will moderate the session and will provide information about Assist programs and other resources for articling students.
We are finalizing details (including the name) but we have our panelists lined up and believe that this will be an excellent session. While the session is designed, and timed, for articling students because they are generally at highest risk of suffering through unacceptable conduct because leaving mid-year causes stigmatization, everyone is welcome. Participants will be able to put their own suggestions into the online chat, so you can choose to be part of our support network. And please consider if you are interested in training to be part of our articling student call-out team—a one-training session will be provided.
If you read the paper I cited at the opening of the blog which does not refer to Alberta, please know that our Law Society has programs to assist articling students, from confidential advice from the Practice Advisors to the Articling Student Placement Program for students in untenable situations. I have met with students who have accessed this program which originated as a pilot program. It is a step in the right direction!
You may wonder why my blog post is titled “Be Kind to an Articling Student Day.” It’s a request, not a reference to yet another official day in our annual calendar. All lawyers in Alberta articled, and I have yet to meet a lawyer who did not have at least one experience of feeling unsupported or unprepared or like the dumbest articling student in the history of all time. Rather than falling into the trap of treating articling students as badly as we were treated, we can look at our traumatic memories to identify what would have helped us, from receiving proper instructions to being treated with respect.
As I was thinking about this, a memory pushed its way to the surface. As a fairly freshly minted articling student, I was asked to go to private chambers (not sure this exists anymore) with a consent order and ask the QB Justice to approve the consent order. I read through the consent order—looked pretty reasonable to me but what did I know—so off I went to the courthouse and waited my turn to see a Justice. The Justice reviewed the consent order and asked me a question: “Whose signature is this on the consent order?” Below the signature was the name of a law firm which I had assumed to be opposing counsel, but I had no idea whose signature it was because no one told me, and I didn’t know enough to ask.
Three possible answers ran through my mind: “Opposing Counsels?”, “Someone from that law firm?” and “I don’t know.” Fortunately, I went with the third answer and trundled back to the office to confirm the name of the lawyer who actually signed the order, and then back again to the courthouse to see the Justice again, provide the name of the lawyer who signed and then file the consent order. There was no malfeasance—I just didn’t know what I didn’t know. It is easy to go down the rabbit hole of why didn’t the lawyer at my firm ensure that I knew who had signed the order, but that is not helpful. He didn’t stop to think about the fact that random articling student who was going to run to the courthouse had no context about who counsel was. These things happen because our communications are imperfect, as are we.
So today, and every day, let’s think about some of the learning experiences we had as articling students and let’s be kind to an articling student. They are the future of our profession, but it is also just the right thing to do.
Please join us on September 8th, and please consider becoming part of our Articling Student Call-out where you can help humanize the profession one phone call at a time.
Loraine