Legal Education Digest
The Law Teacher Vol. 45, No. 3, 2011, pp 278-293
The professional programs leading to the qualifications of solicitor and barrister remain the most important first destination for law graduates, and the destinations to which the majority of those applying for places in law degrees, and reading for law degrees, aspire. Despite this, the proportion of law graduates who are admitted as solicitors has halved over the last two decades.
The growth of the size and number of university law departments, changes in program structure, and changes in academic priorities all have an impact on the qualifying law degree (QLD) and the extent to which it continues to be an adequate and effective preparation for the professional programs taken after graduation.
Ever since the professional practice of law became a predominantly graduate occupation in the 1970s, there has been a tension between the legal professional bodies and the university law teachers about the content of the degree, and the extent to which it is legitimate for the professional bodies to prescribe that content. Accordingly, the professional bodies, through a joint committee which oversees the academic stage of training, specify the core subjects (‘the seven foundations of legal knowledge’) which must be covered if a degree is to have the status of ‘qualifying’ the graduate to proceed to the Legal Practice Course (LPC) / Bar Professional Training Course (BPTC).
For their part, law teachers have sought to minimise the extent to which the professional bodies prescribe the content of qualifying law degrees. More recently, law teachers have pointed to the fact that, in the case of most law degree programs, the proportion of graduates who eventually gain a professional qualification is a minority of the total number of students enrolled. As a consequence, the current specification of the seven foundations is less prescriptive as to the content of each subject than were earlier versions of the specification.
Across all academic disciplines, there are three broad drivers of degree content.
The first driver is employment. The extent to which a program is employment-led will depend on several factors. The first and obvious factor is the extent to which the program is designed to lead to employment in a specific field.
Twenty years ago, a majority of those following law degrees qualified eventually as solicitors or barristers. Some would go on to gain qualifications for which the study of law was recognised or required – for example, as company secretaries or trading standards officers. For all of these career pathways, the core subjects prescribed by the professional bodies were helpful, if not essential in all cases.
The outcomes of higher education, in terms of personal development, are very similar to those associated with the generic transferable skills valued in employment. However, where the link between the program and specific jobs is less clear, those skills are more likely to be expressed as personal attributes, having a value which is independent of employment. Modular course structures make it easier for students to combine elements of law with elements of other disciplines, and there are obvious attractions to the study of law in a societal context, through combination with program elements drawn from fields such as sociology and criminology.
Within modular structures which span law and related social science disciplines, teachers will seek to establish intellectual coherence for the combination of modules selected by students. If only a minority of students are likely to progress to the professional qualification, that coherence is more likely to be based on a social science construct, rather than on the professional practice of law.
Two potential issues arise from the structure of law degrees. The first issue concerns the time which may elapse between a subject being taught on a degree program, and built on subsequently in the LPC. This did not matter if that learning was reinforced by the development of the material in subsequent course units. For example, introduction to contract and tort is likely to take place early in a degree program, given the extent to which these topics underpin much which may follow.
However, on commencing the LPC, in some degree structures, it can be two and a half years since a student studied, say, contract law, and none of the subsequent credits earned from legal subjects have developed that initial knowledge.
The second issue is that of the development of legal writing, legal research and legal reasoning. These are abilities which need to be developed pervasively, through the study of a number of legal subjects over the course of a degree program. An inability on the part of students to be able adequately to research the law, through primary sources such as statute law, secondary legislation and law reports, has long been criticised by law firms. Legal reasoning is best developed over a program in which the skill has to be demonstrated in relation to a number of legal subjects.
What all three abilities have in common is that they do not lend themselves to assessment in relation to a single module, but may require some overarching, summative assessment in the latter stages of a program. This is not always consistent with assessment systems based on the accumulation of credits from individual modules.
There is accordingly a strong case for the LPC providers to make clear to law degree students the assumptions that will be made by LPC teachers about the knowledge, understanding and skills which students will bring from their degree programs. This might include advice on selecting modules beyond the seven foundations of legal knowledge, and on modules which might support particular options within the LPC. It might give examples of the sort of legal research it will be assumed that a student is able to carry out. It could set out the assumptions that LPC teachers make of the knowledge, understanding and skill which will be possessed, and make it clear that the LPC does not have time to provide remedial teaching to make good any deficiencies.
The greatest interest in regulatory intervention in the provision of qualifying law degrees arguably lies not with the professional bodies, but with the providers of the LPC and BPTC. This is not to say that the regulators (now the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB)) have no role in relation to the law degree. They do, because it is a part of overall professional formation; and they must, because it is their statutory powers which give authority to the regulatory regime. However, the major interest in the academic stage lies with the major providers of, in particular, the LPC because it is these providers who have to deal with any mismatch between the expected outcomes of the qualifying law degree, and the assumptions LPC course designers make about the knowledge and understanding actually possessed by law graduates.
If university law departments suffer budget cuts, as a result of general reductions in public funding for universities, or as a result of price competition, then the need for accreditation of qualifying law degrees increases. The professional bodies will need to commit resources to this.
At present, the qualification process seeks both to prepare entrants to the profession for the early years of practice, and to ensure a basic competence in those areas of legal practice which are reserved by law to solicitors (and to some other professionals). Increasingly, these dual aims conflict with each other, especially during the training contract. The reason for this is that much legal practice – especially that undertaken for commercial and corporate clients – is transactional in nature, and does not involve the reserved activities. In many firms, the reserved activities are not undertaken, or are the preserve of specialist departments (for example, litigation or commercial conveyancing).
Over the last 20 years, changes to legal education have been driven by the need to place a greater emphasis on the practical skills needed in practice, and to provide the flexibility necessary to reflect an increasingly diverse range of types of legal practice. In more recent years, there has been an added concern to widen access to the practising professions, with attention being given to possible new ways of gaining practical experience, so as to overcome the limitations imposed by the number of training contracts available.
In general, these changes (actual and proposed) have taken as given the need to prepare individuals to carry out the legal activities that are reserved by law to solicitors and some others. However, in the case of solicitors, these activities are now carried out by a minority of members of the profession, and some are not undertaken at all by the majority of solicitors in many firms.
Ensuring that those who are permitted to undertake reserved legal activities are competent so to do, and widening routes to qualification, are proper objectives. Any qualification system must have regard to them. However, it is now arguable whether they should be the main drivers for a system that prepares individuals for employment in legal practice.
Employment needs do not arise in isolation. They are a reflection of a wider market of client demand for legal services. There must also be an appreciation that markets are not static. In particular, given the lead time involved in qualifying as a solicitor, there must be market foresight to anticipate the likely needs of the market in the future, as well as the current pattern of recruitment.
Accordingly, the starting point for considering changes to professional legal education must be the needs of the employment market for qualified lawyers and, in particular, those parts of the market that offer employment to the greatest number of trainees and newly qualified lawyers.
LPC providers now offer different study pathways within the LPC. These have regard to the intended employment destinations of students, and they are shaped by a choice of context within which to study the compulsory subjects, and a choice of elective subjects. In truth, the majority of LPC students are preparing for careers in which they may have no need to handle the areas of legal work that are reserved to solicitors. They will be, primarily, transactional lawyers.
The main part of the market of employers of LPC graduates comprises the larger firms. They are the firms most likely to offer training contracts in advance of students commencing the LPC, and they are the firms most likely to support their students financially during their pre-employment training. These firms have a number of characteristics that are relevant to the way in which the LPC should prepare students for their legal careers. They include (1) Reserved legal activities are not undertaken by most lawyers, and where they are (e.g. conduct of litigation or commercial conveyancing) the activity is regarded as the preserve of specialists; (2) Most work is transactional in its nature; (3) Some firms are international, or are associated with firms in other jurisdictions; and (4) Some firms undertake little or no work for private clients, dealing wholly or mainly with corporate clients; commercial firms may therefore have no business need for lawyers to be trained to handle those reserved legal activities (such as probate) that are conducted solely on behalf of private clients.
The less that the initial training of solicitors recognises the reality that transactional law lies at the heart of the business of most commercial law firms, the greater is the likelihood that firms will allocate more of their work to individuals other than English solicitors (either paralegals, or qualified lawyers from other jurisdictions), as the cost of solicitors’ training will become disproportionate to the benefits it brings to the firm. On the other hand, a training regime that recognises fully the nature of the core business for which it is preparing individuals will command the continuing support of firms.
A professional qualification ought to have two key characteristics. The first is that it is an adequate preparation for employment (or at least for employment representing the majority of first jobs in the field in question). The second is that it is a full qualification, sufficient for the early stages of a career, but providing an appropriate base for subsequent training, if necessary, and the acquisition of further specialist qualifications, some of which may be associated with a licence to practise in specialist fields. A qualification that is interim, either because elements have been omitted, or because it does not attest to a capability to move into employment, is unlikely to have value in the eyes of students, employers or the public.
In a real sense, the award granted by providers at the end of the LPC is already an interim qualification. LPC graduates have already been prepared for employment, so it is interim only in that it is not the full professional qualification. In most cases, it is an academic qualification in its own right, by virtue of the degree-awarding powers of the provider. No interim qualification can solve the problem of the potential barrier to access to the full qualification that is presented by the training contract, or any other requirement for learning that can occur only in employment.
The Legal Services Act 2007 removes any statutory obligation for the qualification process for solicitors to include ‘service under articles’ (the statutory term for the training contract). Whether or not such a period of apprenticeship should be required therefore becomes a matter for regulations made by the Law Society (through the SRA) and approved by the Legal Services Board.
International practice in relation to a period of work-based training before admission varies within the common law world. However, there is no universal requirement for such work-based training. For example, the work experience requirement in England and Wales, represented by the training contract, is approximately six times the length of that required in New South Wales. The structure of work experience in New South Wales is far more flexible, being based around a personal record of achievement, which continues into post qualification continuing professional development. There is recognition that different employers will provide different types of experience, and there is no requirement for an employer to provide specified experience in particular fields of law.
The requirement for a two-year training contract therefore now sits at the far end of the spectrum of requirements for work experience before admission. The case for a review of the position is overwhelming.
Protection of the public could be secured by separating the entitlement to undertake reserved legal activities from the qualification of solicitor. This would be no more than a recognition that most solicitors do not undertake reserved work. Requiring an additional licence to undertake reserved activities could also increase, rather than diminish, quality and public protection.
Nevertheless, for all of the reserved legal activities there remains a strong case for a period of formal, work-based learning. This should be based on the achievement of standards of competent performance laid down by the SRA.
The specialisation of practice reduces further the relevance of a training contract designed to expose the trainee to the full range of work that could be undertaken by a solicitor, and especially the reserved areas of work. At its most extreme, the inappropriateness of current arrangements is illustrated by the need for prosecution bodies, such as the Crown Prosecution Service, to send their trainees into private practice during the training contract, to gain experience of reserved, non-contentious work that they will never encounter in a prosecuting career. Requiring a separate endorsement to the practising certificate, in respect of each of the reserved areas of work, would represent a more appropriate safeguard of both the public interest and quality, and would remove training requirements that have no relevance to the employment for which a trainee is preparing.
The training contract is the last vestige of an apprenticeship-based system of qualification as a solicitor. Over time, the Law Society has increased the rigour of its regulation of the training provided through qualifying law degrees and, in particular, by LPC providers. In terms of competence, arguably it is now the LPC that provides the main ‘gateway’ to the profession, and is the point (rather than the completion of the training contract) at which it is most likely that the incompetent will be filtered out.
If the gate-keeping function were to pass formally to the LPC providers, there would need to be an increased emphasis on professionalism and professional conduct in the LPC itself. This would be a part of the general emphasis on work-readiness that is, increasingly, a part of the expectations of those employing LPC graduates. Similarly, the SRA, in its accreditation and review of LPC providers, would need to ensure that there was a strong emphasis on quality and standards of provision, reflecting the increased importance of the gatekeeping role.
Change is needed to prevent training for the reserved activities becoming the poor relation of professional formation. It is also needed to ensure that training is properly aligned to practice, with new entrants to employment being ready for the tasks they will undertake in the early stages of their professional career.
We must also avoid the risk of over-regulation, as each frontline regulator develops different training requirements for the same regulated activity. Standard-setting for occupational competence in reserved activities, and common standards of accreditation of training on a system-wide basis, are required. Common standards are vital to ensure that different regulators, authorising their members to undertake the same reserved activity, are working to common levels of competence in which the public may have confidence.
If the expanded and diverse provision of legal services, envisaged by the Legal Services Act, is to be effective in providing clients with high quality and affordable services, the need for change in legal education is urgent.