Points of review
6 December 2012 | By Becky Waller-Davies
Opinions are divided over the Legal Education and Training Review. Is it on course to achieve its objectives?
That the legal market is in a state of unprecedented flux is at least one thing all those involved in the Legal Education and Training Review (LETR) can agree on. Everything else is up for debate.
The review is the most significant examination of legal training since the Ormrod Report in 1971. Its conception was in November 2010 when the chairman of the Legal Services Board (LSB), David Edmonds, raised the issue during the Lord Upjohn lecture at the Association of Law Teachers’ annual meeting.
A research group was put together by the Bar Standards Board, the SRA and the Chartered Institute of Legal Executives. It comprises four academics, one of whom is a former practising lawyer. A steering panel of Sir Mark Potter QC and Dame Janet Gaymer was also created.
The research group’s final report is expected to be unveiled on 13 January 2013, rather than the original estimate of December 2012. But trouble may already be brewing.
This year’s Lord Upjohn lecture was delivered by the newly appointed president of the Supreme Court, Lord Neuberger. Neuberger pointed out two things: that Edmond’s speech was based on a hypothesis rather than a fact and that the review team has narrowed its focus and so narrowed its view of the profession.
The team’s self-expressed intention is to ensure the legal training system furthers the objectives set out in the Legal Services Act 2007. It has chosen to focus particularly on the need to protect and promote the interests of consumers, and to ensure an independent, strong, diverse and effective legal profession.
Neuberger saidd: “I’m afraid that’s not a terribly good start. It’s somewhat worrying that the review decided to describe its fundamental aim as related to only two of the regulatory objectives. In singling out two, the review team may have provided themselves with something of a deformed theodolite through which to survey the field.”
Drawing attention to other tenets of the Legal Services Act, the need to protect and promote the public interest and the need to support the constitutional principle of the rule of law, Neuberger said: “If we exclusively focus on consumer interests - on the development of treating law as a trade - we cast aside its fundamental role and purpose, and we undermine the rule of law and democracy.”
Quite a warning.
In 2010 Edmonds was under pressure from Legal Practice Course (LPC) and Bar Professional Training Course (BPTC) providers and practitioners at the forefront of the industry. The feeling was that university law degrees had an overly academic slant that was detrimental to vocational training and practice. The merits of pupillages and training contracts were also up for debate.
After telling his audience in November 2010 that many in the industry felt the training system was not fit for purpose, Edmonds stated earlier this year that he would be “extremely disappointed” if the LETR team were to make only minor changes.
Neuberger’s view is that it is important not to jump the gun.
He said: “In my view, it remains very much an open question whether the hypothesis that the current system is not fit for purpose is anything other than an assertion.”
Timing and motion
Timing has been a major sticking point throughout the review. It was initially intended to predict the legal market eight years into the future, with the project being referred to as the 2020 Legal Education Review, but this has now been dropped, with the suggestion that the team realised such a task would be near-impossible.
The bugbear of many is that this review is scheduled at a time when the legal market is in the early stages of massive change, so any proposed reforms will be based on very little evidence.
One critic of the report told The Lawyer in 2010: “The problem is that the legal education system is unfit for what we’re doing now, let alone what the profession and structure of legal services will look like eight years from now.”
The emergence of alternative business structures (ABS) and the effect these will have on the legal market cannot be underestimated. After the SRA starts to license ABSs early next year there will be a significant change in the market.
Author, adviser and academic Richard Susskind indicates the scale of this change: “What are we training young lawyers to become? We are training them to become 20th not 21st century lawyers. We can be sure there will be a pretty fundamental change in the delivery of legal services.
“There will be a new entrepreneurial spirit and a more competitive market. Are we training lawyers to become sole practitioners? Within the next 10 years much of the work done by sole practitioners will be done by ABSs. Are we training them to fit into this new model?”
Clifford Chance head of HR Tony King brings a note of caution to the argument. He says: “There is a need for a review. The market is undergoing change, but the regulators will consider the review in 2013. Any changes will be implemented in 2014 when the position on ABSs may be clearer. I’d hope the regulations would be flexible enough to reflect changes in the market.”
In his speech Neuberger took on the assertion of Americanisation by drawing attention to an in-depth, report by the Carnegie Foundation which stated: “The profession of law is fundamental to the flourishing of American democracy. Today however, critics of the legal profession, both from within and without, have pointed to a great profession suffering varying degrees of confusion and demoralisation.”
Neuberger reasoned: “There is a fundamental point, borne out by many misconceived reforms in many fields, that it is unwise for us to adopt a system that has developed in a legal, social and political culture that, while similar to our own in some ways, is profoundly different in others.
“Looking at the Carnegie Report, it is even more unwise to be agitating for the adoption of a foreign system being operated by people who are seeking to reform it in light of serious weaknesses.”
Talk of subsuming the BPTC into the LPC was rubbished by Neuberger, who said: “The BPTC has been overhauled recently. If significant change is needed to the LPC it strikes me as probably unwise to overload the change agenda with a substantial and unnecessary additional feature.”
Fresh thinking required
The Bar Standards Board has indeed carried out three reviews between the end of 2007 and May 2011 covering BPTC (then the Bar Vocational Course), pupillage and continuing professional development.
Bar Council chair Michael Todd QC told Lawyer 2B last year: “We welcome this review provided it’s overarching. It shouldn’t be going over ground we’ve already covered. They must take input from the reviews we’ve already conducted.”
Something else that will be affected by the competition ABSs introduce is the vast number of LPC places that are being offered, enrolled upon and paid for without their takers ever succeeding in winning a training contract.
This massive oversupply is surely a focus for reform. One idea would be to limit the LPC to those who have already secured a training contract. Another might be to declare those who pass the LPC qualified, mirroring the more straightforward system in the US and Europe.
Alex Brown, graduate recruitment partner at Simmons & Simmons, states that the firm receives around 2,000 applications per 40 training contracts available - a situation he believes is pretty representative across the profession.
Brown says: “The bottleneck has moved to a different point in the process. The Law Society used to restrict what is now called the LPC and a limited number of places used to offer it. The bottleneck has moved to the point of getting a training contract. There’s something of this at qualification too, but it’s minor compared to the training contract situation.”
Brown is undecided, however, whether this is a problem for the profession as a whole.
“Is this an issue for the profession? Yes and no,” he says. “No in the sense that, as long as it’s a meritocracy and we’re recruiting the best people for the right reasons, firms are looking at a big talent pool. Yes in that it’s a tough road for someone to go down - a financial commitment with much less certainty than previously.”
Brown dismisses both the idea of Americanising the system and declaring successful LPC students qualified lawyers, and limiting the number of places on the LPC.
He says: “Making the LPC a formal qualification wouldn’t help the situation. People would not be called trainees, they’d be called qualified lawyers, but there would still be a bottleneck.
“I can see there’s an advantage with regard to the financial commitment [in limiting LPC places], but I have quite libertarian views.
“I prefer the current system to limiting LPC places to those with training contracts.”
We’re all in this together…
The nature of the review means that everybody in the industry, not just those directly involved in training, has a stake. Somewhat predictably, the chair of the Legal Services Consumer Panel, Elisabeth Davies, thinks client-focused reforms should be at the heart of the review.
Davies reasons: “This is a once-in-a-generation review. The review team must not be dragged down by vested interests striving to protect the status quo, but set out a bold blueprint for the future.
“Whatever view is taken about whether the existing system is fit for purpose - and our initial submission highlighted some clear failings - it needs to change to equip professionals with the tools to serve consumers in the future marketplace. The consumer protection framework must be fit for purpose before consumers have the confidence to drive competition through their purchasing behaviour, as is expected of them by government and regulators.”
She has a point. Lawyers do not exist in a bubble but to serve consumers - something ABSs are not likely to forget, but many practising lawyers suggest legal academics may have.
The review team features three professors and just one former practising solicitor who is now a reader in legal education at Nottingham Law School.
And so it is that the age-old academic vs commercial tussle rears its ugly head once more.
Neuberger warned: “One of the complaints made about previous reports was that they were too focused on professional experience and ignored educational theory. Well, we shouldn’t now make the opposite mistake and not take into account practical, professional experience.”
Legal consultant Melissa Hardee, a former CMS Cameron McKenna partner and director of the LPC at City Law School, believes this view is unfair.
“In terms of academic focus they’ve tried hard to get the profession’s perspective - on paper they look academic, but in the way they’ve conducted this I can’t criticise them,” she says. “I don’t think they are omitting consumers from consideration. Rather, because many people on law degrees are not going into the profession, legal academics have been focusing on keeping the law degree as a liberal arts degree. That won’t be tenable for much longer - it needs to be a conduit to careers and employment.”
“I don’t want to prejudge whether the review has an overly academic slant,” agrees King. “Whatever the LETR comes out with, it needs to look sensibly at all stages of education - the whole piece needs to be balanced.”
So perhaps the debate is not academia vs practice but rather radicals vs conservatives.
Neuberger’s comments sum up the situation: “The main question is not whether the legal education and training system is not fit for purpose in any way, it is what reforms can sensibly be made.”
Research group members
Julian Webb is professor of legal education at the University of Warwick. He led on a research project on access to undergraduate legal education for the ACLEC Review of Legal Education and Training, advised the Bar Council’s education and training department and was involved as a consultant in the Law Society’s training framework review. He has also been a member of the Elias Working Party, which reviewed the BVC.
He is overall leader of the research team and responsible for recommendations.
Jane Ching became a solicitor practising commercial litigation in 1990 and is now a reader at Nottingham Law School who focuses on legal education.
Ching has worked on curriculum development on the LPC, postgraduate diplomas and LLMs, professional doctorate and CPD provision for practitioners in the UK and abroad.
She is leading the group’s focus on projecting future education and training needs.
Paul Maharg is professor of legal education at the School of Law, University of Northumbria.
He was previously a professor of law at the Glasgow Graduate School, University of Strathclyde, and has worked on interdisciplinary educational design.
He has been a consultant to the Law Society of Scotland on new professional programmes and led on the construction and implementation of entrance criteria, educational aims and assessment guidelines for the Professional Education and Training component of the society’s new professional education. He is leading work |on the literature review.
Avrom Sherr is the Woolf professor of legal education and director of the Institute of Advanced Legal Studies at the University of London.
He works in clinical legal education, skills training and professional legal education in the UK and runs the independent peer review of all legal aid solicitors and not-for-profit centres working on legal aid.
Sherr is currently chair of the Advisory Committee for the Office of the Independent Adjudicator for Higher Education and has been a member of the Lord Chancellor’s Advisory Committee on Legal Education and Conduct, of the Legal
Services Complaints Commissioner’s Legal Services Consumer Board and of the Law Society Equal Opportunities Committee.
Sherr is lead on mapping the current education and training context.