UBC Law: History

Chapter 1: Indentured Labour

A Profession of Apprentices without Principals

Common-law Canada, it seems, inherited the bad as well as the good of legal training from England. Proving that history repeats itself, remarkably similar comments were directed toward the articling system as it was employed half a world away the better part of a century later. University of Saskatchewan political scientist and lawyer Ira MacKay spoke on the topic of legal education when addressing a general meeting of the Alberta Law Society in 1913:

So long as students are allowed to gather their legal knowledge scrap by scrap in the hundred different offices in which they serve their time, no consensus of legal opinion and honor is possible. The clerks in the offices spend most of their time doing clerical work which they will not do for themselves but which they will require their own clerks to do for them when they themselves begin to practise. The result is a profession of apprentices without principals. These clerks receive absolutely no instruction and scarcely any assistance in their work. If once and again they are delegated to gather law on some matter in litigation they only succeed in gathering information which is wholly one-sided and misleading for purposes of impartial and effective legal advice. The only studying they do is during tired after hours by reading legal text books or hand books, most of which are so condensed and the number of authorities so great and so confusing that thorough study is wholly out of the question. This system may possibly produce collectors, conveyancers, money lenders and real estate dealers but it cannot produce lawyers. Clearly this system is only designed to degrade the profession into the position of a mere stepping stone for purely mercenary ends.

MacKay was clearly a partisan in matters touching on legal education or training for the profession of law. He was a firm and powerful advocate of systematic, formal legal education. If and his ringing condemnation of "a profession of apprentices without principals" crosses the line from rhetorical flourish to overstatement, nonetheless, criticism of the articling system has been more or less a constant feature of legal life. Oscar Bass as a British Columbia law student complained to the Benchers of the Law Society of British Columbia in 1900, for example, that it was "manifestly unfair, to say the least, to enrol students and then simply turn them loose, like so many animals in a field, exposed to all sorts of weather, and with no protective means taken to look after their moral or professional standing". Similar criticisms were reflected in an article in the Victoria Colonist in 1909:

Every student experiences to a greater or less degree the difficulty of obtaining a wide outlook over the law, when he pursues his studies only in an office. The barrister to whom he is articled has little time and usually little disposition to interest himself in the young man’s studies, and the result is that he is compelled to grope in the dark, his mind often being hopelessly confused by decisions of courts and the opinions of text-book writers, so that when he begins the practice of his profession he has hardly grasped a single legal principle.

Such criticisms are almost certainly overbroad. The private nature of the articling process makes it very difficult to generalize with any degree of confidence, even about articles today. Determining which factors shaped aspiring lawyers in the first half of the twentieth century is much more difficult. Memories fade and health fails, and because the commonplace is taken for granted, it is rarely recorded in writing. So the history of the articling process in early British Columbia is all but lost. The strongest impression gleaned from the few written accounts and oral histories that survive is simply that a tremendous variety of experiences were subsumed under the heading "articles".

Some indication of the flexible, entirely unregulated character of articles in British Columbia that prevailed even as late as the 1930s is indicated by Alfred Watts’s recollections of his own articling experience. Upon graduating from the University of British Columbia with a commerce degree in 1932, Watts started the three-year apprenticeship required of him. The activities he pursued upon taking articles with Vancouver lawyer Colonel W. S. Buell reflect a world in which the education of even MacKay’s copying clerks or Bass’s "animals in a field" would have seemed rigorous and demanding. "After taking out articles," Watts reports, he "went away for four months, (things were rather casual in those days), and took a trip around the world." Beginning a somewhat more orthodox routine upon his return to Colonel Buell’s office, Watts found himself distinctly under-employed from November 1932 through to February 1933. Another student had been taken on during his travels, compounding the shortage of legal work that Buell was experiencing as a result of the Great Depression. Apart from "a lot of collections of small claims which were mostly dead turkeys", and some foreclosure-related chambers work ("speaking to the odd thing in chambers and adjourning it or something like that"), Watts found little to do.

Realizing that "there really wasn’t enough to keep both students busy", Watts arranged to have his articles transferred. His new principal, Ross Tolmie, had himself been called to the Bar only the month before. The two entered into a three-way partnership with Roger Odlum (who was not a lawyer), in a business venture that combined an itinerant general store with a roving law office. They zealously took up their mission of bringing flour, miscellaneous provisions, and law to Cariboo gold miners. A one-and-one-half ton International truck was acquired and loaded with "the required commodities for a general store", ten drums of gasoline, and a few law books. So equipped, the trio set off along a crude Fraser Canyon trail "for the Cariboo, with no exact destination". Over the next months Watts’s articling consisted of large doses of truck maintenance, grocery purveying, and lumber hauling. At one point, qualification for his future legal career was even advanced by assisting Percy Wilson, who happened to be a lawyer, in Wilson’s film developing business. There is remarkably little record of either mentoring by his principal or independent study of law during this phase of Watts’s articles. He reports:

There were examinations coming up in June down town and somehow the necessary knowledge had to be acquired. It would be nice to tell of the long and helpful discussions with my principal on the finer points of the law of contract, his leadership in demonstrating the finer points of legal ethics and generally his expositions on the whole sweep of the law. Unfortunately this cannot be related because it never really happened, all of us being much too busy in surviving and making a living. He did produce some old first year exam papers and with the aid of a few dog eared texts the law student presented himself in Vancouver and somehow or other got through the exams except for practice and procedure which had remained and still remains a completely closed book.

After examinations were concluded, summer was dedicated to general business pursuits ("not much law but a good deal of fun"). Only as winter approached and it became apparent to the three partners that the Cariboo’s mini-gold boom was running itself out did Watts arrange to have his articles reassigned to Colonel Buell. It could well have been otherwise. In 1983, Watts told an interviewer that if the business "had kept really going along we would have probably stayed on, because my articles were running and, what the hell, I couldn’t care less". In any event, he returned to Vancouver in September to focus more directly on apprenticing for his profession. His motivation was partly professional and partly economic: "I was pretty well convinced and possibly Ross may have assisted me to some extent, that if I wanted to really get to be a lawyer I’d better get down to Vancouver and do something about it." His partners stayed in the Cariboo long enough to sell the business "to a chap who ran the post office there . . . and he went broke in no time at all". Watts was called to the Bar in 1935.

Other professional apprenticeships, certainly, were neither as colourful nor, seemingly, quite as unrelated to legal work as was Watts’s. Daniel M. Gordon was questioned in 1978 about the process by which he qualified for the legal profession under articles to Alex Martin in Victoria from 1912 to 1915. No formal legal education was available in Victoria until the last few months of Gordon’s articling period (when the Victoria Law School opened), but he and "about half a dozen other pupils" paid E. C. Mayers for "a series of private lectures" taken at Mayers’s offices at night. Reflecting free-market principles at their finest, the lectures were arranged according to the students’ wishes. Gordon recollected:

[W]hen we began the lectures, he asked us how we wished to have these lectures given, whether he should go over any particular text books with us or whether he should go over some of his cases and explain what he did and why he did them, and we all opted for that (the cases) and he went through a number of cases and oh, he went into pleadings and how he raised the various points at the trials of these cases and why he did it that way.

Although one might have hoped that all articling principals could have offered their students as much, such legal discussion did not routinely take place. Nor did students expect it of their principals, as Leonie (Lalonde) Anderson accounts:

Mrs. Waters: It sounds as though it was a very practical course [of articles], therefore. Do you feel that any of the partners had an academic turn of mind, that they wished you to think about the whys and wherefores of law, as well as the black letter?

Mrs. Anderson: Oh, I think they were too busy to really analyse us at all. They just took us and it was up to us to qualify.

One lawyer in the firm did offer to tutor Lalonde, but no worthwhile educational process resulted. Bob Smith, according to Lalonde, "did think that he could help me in my studies, and did help me once, but it turned out to be very slow and very—I don’t think he was a teacher, and so it was never repeated".

The workaday world of articles in the time of Leonie (Lalonde) Anderson and Daniel Gordon are markedly different from that of many modern articling students. According to Gordon, it "was rare for students to be paid" at all and when they were paid, salaries generally fell somewhere in the range of fifteen to twenty-five dollars per month (in comparison, veterans of the First World War were given a grant of sixty dollars per month for one term at university; Chief Justice John Owen Wilson earned fifteen dollars per month articling in 1922 and paid thirty-five dollars per month for board. When T. D. Pattullo eventually paid him forty-five dollars monthly he thought it "a terrific salary . . . for a law student"). Mr. Justice Meredith McFarlane recalled that when he articled to J. Edward Bird in 1929 he was paid fifteen dollars per month, though this sum was increased dramatically—to thirty-five dollars—"after about four or five weeks". Not all students were shy about monetary matters, however. In 1910 a young man by the name of Clarence H. Kearns indicated that he would transfer the last two years of his articles to the firm of Williams and Manson in Prince Rupert for a salary of one hundred dollars per month. The firm’s response is revealing. Alex Manson wrote to Leon Ladner of the Vancouver Law Students’ Society on May 13, 1910:

In regard to Kearns—he apparently would make a good man for the position, but I cannot for the life of me see why in blazes he wants to ask from $90. to $100. per month to start, and he a third year man with two years more to run. It seems to me a student has his nerve to ask that amount. He has got to go some to earn it, and I venture to think the average student would not leave much of a margin on his work if he were paid $100. and besides he is supposed to be gaining experience and be under tuition. I am the last person on earth to kick at paying a man a fair and reasonable wage, but I think $75—unless a man "Shows me"—is pretty nearly my maximum to a student. The young man that refuses to come here without an exorbitant salary is making a mistake. I came here fresh from the college halls. I have not regretted it for an instant, and the prospects I see ahead of me give me hope to believe I never shall. I honestly think that a good student could get an opening in our office such as he could get in no other office in B.C., unless it is in that of our friend across the street—L. W. Patmore. We are perhaps not doing the volume of business that some of the firms in Vancouver are, but we have as good prospects as any young man would want. There are no senior Counsel here to over shadow a young man in the court room, and even a student stands pretty nearly on an even footing to his principal.

Even the reduced salary of seventy-five dollars per month that Manson was willing to pay seems generous by the standards of the time or indeed of any period in the next several decades. Manson’s letter also suggests that the Prince Rupert firm might have offered something more valuable than mere economic return: a richer and more challenging experience of legal work than was available in law offices elsewhere in the province. The everyday world of the articling student in the early twentieth century was not always either stimulating or intellectually challenging. Lacking electric typewriters, computerized word-processing, photocopiers, and cost-effective printing services, Daniel Gordon recalled spending a good portion of his working life as a student lawyer preparing documents mostly drafted in long-hand". Despite the enormous amount of time such routine tasks must have taken, however, his articles amounted to a good deal more than mere service as a copying clerk. He had time to "go across to the Court House and listen to the counsel quite often, especially in the Court of Appeal". Gordon engaged in reasonably sophisticated legal work, and read in the evenings—"not [just] for examinations but just for general information".

Daniel Gordon’s description of a "typical day" in his life during articles is interesting. The picture emerges of a young man working quite hard in a law office and gaining exposure to a variety of legal work. It is clear, nonetheless, that he was left largely unsupervised. Learning seems to have been acquired in much the same way as Lord Brougham had described in England many years before: "generally speaking" the student was "left very much to himself":

Mr. [Leslie] Jamieson: Could you please talk a little more about what you did, say, on a usual day, regular day, while you were articling here. What kinds of things would you do, basically?
Dr. Gordon: You mean legal work.
Mr. Jamieson: Yes, legal work.
Dr. Gordon: Oh, that’s not easy to say. There was a certain amount of variety about it . . . I handled a good many foreclosures and then I occasionally took a small case or two towards the end of my articles. Judge [P. S.] Lampman allowed us students to do that because he said we needed the practice. [general laughter]
Mr. Jamieson: So, it wasn’t all leg work . . .
Dr. Gordon: Oh no, oh no.
Mr. Jamieson: Did you have much supervision during that time?
Dr. Gordon: No, practically no supervision in the office.
Mr. Jamieson: So, when you got a case it was basically your case and you . . .
Dr. Gordon: Oh yes, I worked it up myself; in fact, I used to work up cases [chuckles] for my employers.

Despite lack of supervision or mentoring, the overall impression conveyed by Gordon’s description of his legal training stands in strong contrast to Alfred Watts’s world-voyage and "Cariboo days". Gordon’s days were filled with legal work or sitting in on Appellate Court proceedings, his evenings devoted to private study, supplemented by individually arranged tutorials. This work counted equally, as far as the law society was concerned, with adventurous travels, running a small business, delivering lumber, and film processing.

Not all law students were left as thoroughly unmentored by their principals as were Watts, Lalonde, and Gordon. Articling experiences in the past varied tremendously, just as they do today. At least one student who articled in the 1930s thought of his principal (Cecil Killam) as being deliberately and very much involved in an educational process. Asked by Maryla Waters whether "Killam saw himself, in his role as Principal, as a teacher and a mentor to you?", Donald Clark Fillmore replied emphatically:

Oh yes I think so. I think so. He wasn’t too busy, very few lawyers were busy then. Yes he did, and he enjoyed arguing with me about a point or having me argue with him about a point and he’d get a bit aggressive about it. But that was fine, that’s what he wanted, he enjoyed that which of course was helpful to me.

This pedagogic strategy closely resembles the Socratic method, and if, as the passage seems to suggest, the experience was repeated with any degree of regularity, it must have provided a very fine education in law.

Other articling lawyers were less well mentored, but nonetheless managed to gain a valued and reasonably well-rounded experience of legal work. Mr. Justice McFarlane divided his articles between two Vancouver principals and a year spent in Toronto doing legal work while attending lectures at Osgoode Hall. Interviewed by Professor Tony Sheppard in 1995, he reported that the time spent in Ontario was not particularly helpful:

Mr. Justice McFarlane: I found that most law students in Ontario, at that time, didn’t get nearly the broad practical look at things that we did here in Vancouver. The antiquated Land Registry System . . . was such that most of the law students, when they got out of their lectures, Osgoode Hall lectures at noon, had a quick lunch and just went to the Land Registry Office, where somebody from their principal’s offices were there with the titles that were to be searched that day. And that’s about all they did.
. . .
Some of them didn’t see their principals for weeks on end, they would send the results of their searches back and that was it.
Professor Sheppard: So they were just doing Title Searches?
Mr. Justice McFarlane: Most of them were, I think.
. . .
[I]t’s just a question in my mind whether the year in Osgoode was worth it compared to the practical things that I think students have to do in order to be qualified to practice . . . after the excellent academic training they got at a law school, especially at your law school now.

Chapter 1 continued