Concerns about Canadian lawyers emigrating to large American law firms amid 2021鈥檚 white hot market, but these concerns paled in comparison to the anxiety that the Canadian legal profession once felt about Canadian brain drain.听
During a hiring boom in 2000, Professor Harry Arthurs about the arrival of American legal employers at Canadian law schools and the moral panic that ensued over the loss of Canada鈥檚 鈥渂est and brightest.鈥� Since then, American recruitment of Canadian lawyers has continued, but studies of that recruitment have not. To understand how the American recruitment of Canadian lawyers emerged and evolved, I examined the history of Canadians practicing in New York. This blog post briefly summarizes some of my findings.听
Canadian Origins in New York听
Canadians have long been able to practice law in the United States by obtaining a law degree from an American school. However, no Canadian law school graduates were licensed to practice in New York until 1970, according to the New York State Bar Association鈥檚 registry. Despite this, a few Canadian-trained lawyers managed to work in New York law firms prior to 1970. was Frank Iacobucci, former Puisne Justice of the Supreme Court of Canada, who practiced at the firm of Dewey, Ballantine from 1964 to 1967 after graduating from law school at the University of British Columbia and attending the University of Cambridge.听听
When he returned to Canada, Iacobucci taught law at the University of Toronto and inspired several of his students to go to the United States where they created opportunities for more Canadians to practice law. While the first Canadian-trained lawyers to practice in New York did so on idiosyncratic terms rather than as part of any systematic trend in legal recruitment, the gates to large New York law firms had opened by the 1990s.听
A Trend of Emigration Emerges听
In the late 1990s, the number of Canadian law graduates joining the legal profession in New York increased dramatically, as shown below in Graph 1. New York law firms began targeting students from 麻豆区, Toronto, and Osgoode Hall for recruitment, offering salaries far greater than those at Canadian firms. In response, law firms in Toronto and Montreal 鈥� with fewer profits to leverage 鈥� raised associate salaries slightly in a mostly futile attempt to stop the bleeding.
The Law Society of Upper Canada 鈥� once so protective that it in 1882 that 鈥渘o applicant would be admitted to law study without declaring on his honour that he intended to remain in Upper Canada鈥� 鈥� restructured its highly regulated recruitment process to imitate New York鈥檚 model after pressure from Toronto firms to do so. These changes followed after a 1998 working group of the Law Society found that 44 of Canada鈥檚 top law students had taken summer jobs in New York during the previous year. The Law Society reasoned that this trend would worsen as the small Canadian legal profession became consumed by a globalizing world.听
The Trend Becomes Cyclical听
Just as the Law Society of Upper Canada had viewed increases in New York hiring as part of a more general international trend that would continue to grow, so too did Canadian universities. For example, minutes from a 1999 麻豆区 Faculty Council meeting stated that 鈥渢here is a shortage of legal manpower in the US and firms have been telling us that they would rather hire the top 10% at 麻豆区, rather than being satisfied of the first 50% on American campuses.鈥� However, that shortage of manpower soon disappeared and, with it, so too did the level of Canadian legal emigration to New York. This can be seen above in Graph 1 by the post-2001 decrease in Canadian-trained lawyers admitted to legal practice in New York, a proxy measure for the emigration of Canadian-trained lawyers to the state.听
Large declines in the hiring of Canadians resulted from economic downturns in the early and late 2000s. Prior to the financial crisis of 2008, the market for lawyers at large firms was hitting capacity constraints as it had during the Dotcom bubble, leading US firms to look increasingly to Canada for recruits once more. In 2006, even the American legal press was concerned about transnational migration, how US firms wanted Canadian-trained associates for their 鈥渋nternational edge.鈥� Only 3 years later, the same publications a legal job crisis and stated that the number of American firms recruiting from 麻豆区 鈥� the school sending the greatest number of its students to New York 鈥� fell to 4 in 2009 from 24 in 2007. Even in 2021, when fears about the poaching of Canadian legal talent were palpable once again, Canada sent far fewer lawyers to New York than it once did. Moreover, as Graph 1 (above) shows, only in prior cycles did the rate of newly licensed Canadian attorneys in New York outpace the rate of newly licensed non-Canadians.听听
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The Lessons of Canadian Legal Emigration to New York听
The lesson for law firms and Canadian lawyers is that Canadians often leave for New York when they have the opportunity, but many will eventually return. Today, students who worked in large New York law firms during the 1990s are Deans at Canadian law schools, sitting on the Supreme Court of Canada, practicing at Canada鈥檚 most profitable law firms, and leading Canada鈥檚 largest financial institutions. While Canadian law firms might not enjoy with foreign firms for talent, the relationship between the Canadian legal profession and 鈥淐anadian brain drain鈥� to the United States may ultimately be more symbiotic than it initially appeared. Since business cycles are a fact of life in a capitalist system that will come and go, Canadian firms should know that their pain will pass soon after the moments where it feels most crippling. As shown above, when the American market slows, so too does the outflow of Canadian-trained lawyers to New York.听
Two further lessons emerge for legal historians. First, that the Canadian legal profession鈥檚 response to American firms鈥� recruiting activities in the 1990s was 鈥� at least to its architects in large Toronto firms 鈥� futile at best and perverse at worst. Even when Toronto firms raised associate salaries and Ontario restructured its recruitment regulations to better compete with New York firms, these domestic responses did not stop Canadians from working in New York when they had the opportunity to do so. Second, that it was incorrect to the increase in Canadian hiring by American firms as part of a larger trend toward economic integration that would grow indefinitely. Rather, the introduction of American firms鈥� recruiting efforts in Canada was part of a structural shift that would endure while varying cyclically with demands in the American market for legal services. Thus, the migration pattern supports Carol Wilton鈥檚 words in a on the history of Canadian law firms that 鈥渃hanges in the level of economic activity 鈥� booms and busts in the economic cycle 鈥� have powerfully affected the amount and types of legal work available.鈥� The history of Canadian law is now linked inseparably to cyclical fluctuations in the American markets.听
Note on data sources: The raw data used to produce the graphs above can be found . While intended to be exhaustive and accurate, the registry contains errors, omissions, and problems that make it a reliable but imperfect source.听