by David Gambrill
Law Times

A grades scandal at the University of Toronto's faculty of law last week prompted legal observers to portray first-year law students as victims of aggressive job recruiting by law firms.

Critics of that argument say marketplace competition does not explain or excuse the dubious moral judgment of students who lie about their grades. Such students, they say, should have thought through the consequences of their choices.

U of T law school dean Ron Daniels told Law Times it would be "speculative at best" and "irresponsible at worst" to be "looking anywhere other than within the hearts and the minds of the 30 students who are now involved - and later the law schools- to figure out what's happened."

"At this point, I think it's really important that we approach the investigation with the students in a very open-minded way and hear every one of their stories, listen to them, and hear their explanations for why the discrepancies [between their marks and verbal reports]," said Daniels. "And, to the extent that we find that during the course of the discussions these discrepancies can easily be explained away, why [the students] believe they made the choice they did to misrepresent."

For many in the legal profession, the U of T scandal is the predictable outcome of a context in which law firms are pressuring students to apply early for summer jobs and articling placements.

Years ago, for example, law students had to apply for summer jobs at law firms by February of their second year of law school. Recently firms have required students to apply for second-year summer jobs at the very beginning of second year, putting a premium on the students' first-year transcripts.

Now, in the jump to recruit the best students even earlier, firms are offering summer positions at the end of a student's first year of law school. Students therefore have to apply for summer positions in January of their first year of law school.

Queen's University law school dean Alison Harvison Young says most law schools across Canada don't place much credence in these mid-term marks. "They're only to assist, practice," she told Law Times. For this reason, the marks don't show up on a student's official transcript.

It's alleged that U of T students lied to law firms about their mid-term marks, knowing the firms could not check their claims against official transcripts. "Gee, I'd like to be able to write my report card myself, too," jokes Brian Keith, the chair of the recruiting committee at Borden Ladner Gervais.

Harvison Young says context is important. She says law firms are "under incredible pressure" to recruit "the best and the brightest" law students as soon as possible. The concern is if they don't, law school graduates may take their legal skills elsewhere - most often to New York, Boston, or to a lesser extent, England. A strong U.S. economy has only intensified the competition, or what Harvison Young calls the "feeding frenzy," for young Canadian lawyers.

"The ante has been upped, and the time of recruitment is earlier and earlier," says Harvison Young. "One of the jokes - sort of a joke - is that the next thing you know, law firms are going to be hiring on the basis of LSAT scores."

Keith agrees the pressure on law firms to recruit early is very real. So far, Borden Ladner does not recruit law students on the basis of first-year school to find their feet," says Keith.

But the firm could change its policy at any time, based on the dictates of the market.

"Eventually it's like so many other areas of competition," Keith says. "If what we find is that all of our other major competitors are offering first-year [law students] summer jobs and we're the only ones who aren't - and the result is that we're not getting as good a selection of other students because they're committed to other firms, as well as these summer jobs - we may be forced to do it."

It's a sensitive matter for some of the biggest firms. When contacted by Law Times, a representative of Torys says: "The people on that [recruiting] committee are not interested in answering questions on that matter."

Rosyln Cooper, a recruiter at Fasken Martineau DuMoulin, says only three firms hired first-year law students for the summer last year; now, the number is more like 10, she says.

The trend may lead young law students to believe it's essential to get a good start early, says Harvison Young.

"These jobs are in one sense important because if you can get a job at that stage, it looks like you're one of the real elite," she says. "That would probably be a real boost if you were interested in doing something like working in New York."

But that's too much of a burden for first-year law students, says Brian Dominique, the head of Cassels Brock's recruiting committee.

"This firm does not hire first-year law students," he says. "One of the reasons we don't is that we think there's too much pressure on students too early in their academic careers to be making these kinds of decisions and applications in the first place."

Keith and Harvison Young hope what happened at U of T will act as a warning to firms that recruit first-year law students.

"This should cause the law firms, I think, to take a very hard look at whether it's really fair for everybody for [firms] to be recruiting students who have not even written the full set of law school exams," says Keith.

Harvison Young is even more pointed: "I would say [to law firms], 'Calm down and be a little more cautious.'"

But whatever pressures law students may face in the marketplace, they must still be held accountable for poor moral judgment, says Law Society of Upper Canada Treasurer Bob Armstrong, echoing comments by both Harvison Young and Daniels.

Armstrong says U of T's investigation is not completed yet; he couldn't say, therefore, whether the students' search for a "competitive edge" in the marketplace or among themselves may have "got out of control."

"Whether it did or it didn't, from my viewpoint, none of it can be excused on that basis or quite frankly on any other basis," Armstrong told Law Times. "Nobody pointed a gun at them and told them to lie, if they lied.

"Any sensible person would know that it is not a prerequisite to a future legal career to have a job in the summer at a Toronto law firm. It just isn't."

Similarly, Michael Hollinger, a second-year law student at U of T and co-treasurer of the Students' Law Society, thinks the pressures students face in finding a job are "self-imposed."

Hollinger says many of his friends managed to find summer jobs in the legal field without being recruited by the top 10 firms. One of his friends, for example, spent a summer working at a downtown legal aid clinic.

"There's the idea that the sooner you get a job with a firm, the more set you are," says Hollinger. "But to be honest there's all sorts of other things people can do, especially in first year."

And even if one wants to impress the big firms, misrepresenting test scores is hardly the way to go about it, says Cooper.

"Everyone puts great emphasis on marks, and there's no question that firms are looking for good academic performance," she says. "But more and more, firms are looking for other things. They're looking for qualities that make excellent lawyers - one of which includes honesty."

Another may be the recognition that every act carries with it certain moral consequences, Hollinger suggests. He says he had heard "rumours" about the cheating before the university's official investigation began.

"The ones who did it probably didn't have an eye to the real consequences of it," he says. "Knowing the consequences of it, who would ever try that? It's ridiculous." Daniels said the school's academic code includes a "range of sanctions," from dismissal of all charges to an extreme case of expulsion. "We're a long way from there," Daniels cautioned. "We don't even have the facts yet."

Students found to have lied may face not only academic penalties, but sanctions from the law society. In order to be called to the bar, young lawyers have to demonstrate 'good character.'

If students are found to have lied, "it's something we will have to consider at the time in an appropriate way," says Armstrong. For example, the students may have to write to have their cases adjudicated before a law society hearing, he says.

Is risking such penalties worth it to article in a big law firm? Hollinger suggests aspiring young lawyers "take a read" of what happened at the University of Toronto."

"That's how it works in every legal proceeding," Hollinger says. "You don't have to know the exact consequences, you just have to know that something is wrong.

"It won't surprise anybody that this is wrong."