It’s all academic
30 January 2012
With three academics and only one lawyer on the panel, will the Legal Education and Training Review listen to the needs of private practice?
Professional regulators and academics both love a meaty research project, and when the two combine forces, it’s time to sit back and watch the layers of complexity pile up like dung at a livestock show. The current case in point for law students is an ongoing beast of a project called the Legal Education and Training Review, which was conceived more than a year ago and has already spawned a range of tadpoles, including a research team, a review committee and an oversight panel.
While this is all jolly nice work for clipboard-toting boffins, there are doubts over whether the project will produce meaningful recommendations for the education and training of young lawyers in a profession that is experiencing the most dramatic revolution in its history.
Any day now, a 200-page research document – described as a ‘literature review’ (a summary of everything that has ever been written on the subject, but you couldn’t be bothered to read before) – will fall on the desks of the three leaders of the legal profession’s regulators, the SRA, the Bar Standards Board (BSB) and the Institute of Legal Executives (Ilex) Professional Standards. Their initial response is likely to be an underwhelming ‘it’s about time’, as the tome has been nearly a year in the making and many in the profession reckon it should have arrived earlier, if produced at all.
Whether this opening salvo foreshadows a spectacular firework display of proposals at the end of this year when the full review is set for publication, or is simply the precursor to another damp squib in a line of long-forgotten reform projects (see box, page 37) is the bigger issue. There is already grumbling among some commentators that the project, which is costing the legal profession hundreds of thousands of pounds, is ultimately doomed to obscurity, owing to an overly academic bent that will render the findings useless to law students and their potential employers.
The review’s genesis dates from November 2010 when David Edmonds, the chairman of the then newly-minted Legal Services Board, told an Association of Law Teachers meeting that it was time for a comprehensive review of legal education. He was under pressure from some of the bigger providers of the LPC and BVC (now BPTC) as well as some leading practising lawyers. For years they had been arguing that university law degrees were trapped in old-fashioned ivory-tower thinking and that both the training contract and pupillage structures were outmoded.
Edmonds’s comments spurred the three regulators to tender for a research group to conduct the review. That body was appointed last spring, but whenever so many regulation bureaucrats combine on a project, one body is never enough. Levels of supervision were superimposed on top, with the most wide-ranging – a steering panel – being chaired by two leading lawyers, solicitor Janet Gaymer and former High Court judge Sir Mark Potter.
The research group itself, headed by leading Warwick University law professor Julian Webb, consists mainly of academics – only one of the lead group of four on the review team is a qualified lawyer with coal-face practitioner experience (see box, above). And that is a major problem, argue some.
“What’s always struck me is the incredible animosity held by many law academics towards the practising profession,” says Melissa Hardee, a former training partner at global law firm CMS Cameron McKenna, who is now a legal sector consultant. Hardee has been on both sides, having left legal practice in the mid-2000s to become director of the LPC at City University London.
She claims that the academics’ animosity “comes from their absolute protection of the law degree as a liberal arts degree. Anytime someone queries the future of the law degree and points out that students are going to expect employment at the end of it – or they’ll be looking for a different degree that actually leads to employment – they get beaten and put on a cross.”
Hardee calls on those conducting the review “to rise above the animosity and the views that are held by some academics towards the profession, especially as to whether the profession has any right or role in involving itself in discussions about the content of law degrees”.
Another issue is the review’s wide-ranging terms of reference. Initially the brief was to forecast the state of the legal services market in 2020, with the project itself referred to in official shorthand as ‘Review 2020’.
But the research team has dropped that reference, with some commentators suggesting it became sensitive to criticism that such a wide remit would be impossible to meet. One leading critic who wishes to remain anonymous says: “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.”
It is a problem readily acknowledged by Potter. “One of the greatest difficulties,” he says, “is making a forecast, not least when alternative business structures (ABSs) have just come on the scene. Who knows how fast and quickly they will develop and what shape future bodies will take that are able to deliver legal services.”
So if one of the two senior players involved in the review has such reservations about the ability of the project to deliver, what is the point of spending more than two years and a budget rumoured to be £500,000? (The review is being funded proportionately by the three regulators, and the SRA, which is project-managing the process, maintains the total budget is less than the half-a-million figure being bandied about, although it will not provide specifics.)
All three of the profession’s leaders back the review, but with various caveats attached. “It’s a very good thing that this review is happening,” maintains Law Society president John Wotton, who is also a consultant at London-based global law firm Allen & Overy. “It’s also a very good thing that it’s going to be thorough and painstaking.”
He acknowledges there are valid concerns about the process. “I can understand why those with clear ideas of how the system should change are slightly frustrated that the review is taking some time. But it’s taking time to establish what the wider legal profession thinks is needed.”
Wotton would like to see the review address several issues, not least the long-standing debate over whether law students headed towards the solicitor or barrister sides of the profession should receive a more common education up to the point of qualification. “Is it still rational to have a separation immediately after the undergraduate degree or GDL?” he asks. “That question needs to be raised in the context of the fact that there are now no barriers to solicitors and barristers practising together.”
Wotton also maintains that “non-conventional, non-graduate” routes to qualification must remain and be encouraged. “Even though a university education is more accessible than it was a couple of generations ago,” he says, “there are barriers raised by fees and living costs and one wants to make sure that if the conventional route is not accessible to some young people, they still have the opportunity to qualify by some other route.”
The current standard bearer for non-conventional routes into the legal profession is the Institute of Legal Executives, and its chief executive Diane Burleigh cautiously welcomes the review. “The timing is right,” she maintains. “Not so much in terms of reviewing the academic teaching of law, but in terms of broader issues around the business and management skills and knowledge that is going to be needed to work in a large international firm or ABS.”
However, Burleigh agrees that critics of the review timeframe and remit make some fair points. “It does seem a long time,” she concedes, “but if you look in detail at what it’s supposed to be covering, then I don’t think those driving the review can be criticised. They set out a clear project plan and they are keeping to it so far.
“I might be more critical of the fact that they appear to have been over-enthusiastic in terms of what they propose covering. They’re doing a literature review of all the research that has been done before, and at some point they’re going to be looking at what should and shouldn’t be covered by regulated activities – I’m not sure that is the role of an education and training review.”
The top man at the Bar Council, chairman Michael Todd QC, also
has reservations. “We welcome this review,” he says, “provided that it’s overarching. It shouldn’t be going over the same ground that we’ve already covered. They must take the input from the reviews that we’ve already conducted.”
Todd makes the point that the BSB conducted three reviews of education and training issues between the end of 2007 and last May, covering the BVC, pupillage and continuing professional development. “If you look at the [current] review schedule,” maintains Todd, “some of the advice recommendations are not forecast to be in place until 2016. That’s an extraordinary amount of time and I can’t think of why a legal education and training review should take quite so much time.”
Nonetheless, the Bar Council maintains that it is open to reform proposals that might emerge from the current review, specifically in relation to common training, a point on which senior council members have been very sensitive in the past.
“There’s potential for some common training after the university degree,” says Todd, “but it needs a lot of looking into. It must be borne in mind that barristers are specialist advocates and that solicitors generally do not want that specialist advocacy training. And we need to ensure that any move to a more common training regime does not impose greater costs on students. That would be inimical to the aim of having greater diversity in the profession.”
The heads of both the bar and the solicitors’ professions are adamant that they will not welcome any proposals that would radically change either the pupillage or training contract regimes. For his part, Todd describes pupillage as “the icing on the cake” and the “most possible fit for purpose” vocational method of training.
Likewise, Wotton says: “A period of supervised work before one is declared fully qualified and is let loose on members of the public does add value. I’d be very reluctant to see that go. We should be entirely open to looking at whether there are ways of providing that experience that differ from the current two-year training contract.”
Indeed, the SRA and certain law firms are already forging ahead with reforming the training contract. At the end of last year, global law firm Eversheds announced the launch of its combined study training contract, which aims to streamline the process.
Eversheds graduate recruitment manager Nicky Bizzell believes the current research team needs to make modernising proposals. “The system needs to be brought up to date,” she says, “and we need to create some flexibility within the training regime.”
Bizzell focuses her strongest criticism on existing undergraduate law degrees. “One of the things that lets people down when they come to interview with us or when they start working with us is that they are tasked with a different set of expectations at university,” she comments. “Some of the research and written work that students are asked to produce at university is very academic. And if they are asked to apply a commercial thinking to it, that can impact their grades negatively.
“I’d like to see more of a bridge between what students learn academically and then how they could be encouraged to apply that professionally. It needs to be acknowledged by the universities that commercial lawyers need certain skills. If you want to practise academic law, then a commercial law firm is not the place to do that.”
Research team leader Professor Julian Webb remains resolute in the face of the debate brewing around the project. “There are lots of agendas – that’s the one thing that we can guarantee around this review. Everyone has an opinion about how it should be done. If you put a group of people from the same background in a room, they’re likely to agree fairly quickly. However, if you start mixing up a range of stakeholders, then you will see pretty quickly that what appears clear-cut to one group is not to another.”
Regarding criticism that he and his team are perched in an ivory tower, again he is robust in defence. “This is a piece of research and we are experts in research,” he asserts. “We have people on the team who have practice experience and who engage with practitioners and with those at a wide range of levels in legal education and training across a range of jurisdictions. We’ve got the best team we could have.”
Over the next few months, the Legal Education and Training Review will publish a series of discussion papers and hold a programme of focus groups. For more information go to letr.org.uk
Blasts from the past
The current Legal Education and Training Review may be an ambitious project, but it is by no means the first attempt at reform by the profession’s regulators.
One of the most renowned – dubbed the ‘Training Framework Review’ – was launched by the Law Society more than a decade ago under then director of legal education Roger Smith. Smith, who has since taken the top role at human rights campaigner Justice, remembers the process with mixed emotions, not least because his original aims were eventually drowned in a flood of Chancery Lane politicking.
“The issues I was concerned about,” recalls Smith, “was evidence that the large City firms found the Legal Practice Course (LPC) to be unsatisfactory – it didn’t cover enough, it wasn’t stretching the students enough, it wasn’t useful enough generally. I wanted the society to be able to respond to that criticism, but to do so in a way that kept the LPC as a common route of entry to the profession.”
He maintains that the profession is “probably right” to instigate another review at some point, although he suggests the current timing might be slightly misjudged. “While everyone recognises that the legal profession is changing dramatically,” he says, “no one can quite identify how.”
The review team
Julian Webb The professor of legal education at Warwick University is the research team’s leader. In 1995 he headed research into access to undergraduate legal education for the Lord Chancellor’s advisory committee on legal education and conduct (ACLEC). From 1998 to 2001 he was an education adviser to the Bar Council, and in 2001 he was part of a team reviewing the professional legal training course in New Zealand. Back in England, he was also a consultant to the
Law Society’s Training Framework Review.
Jane Ching The only former practising lawyer on the team, Ching qualified as a solicitor in 1990, practising general commercial litigation. She is currently a reader at Nottingham Law School in legal education.
Paul Maharg Professor of legal education at the University of Northumbria Law School, Maharg was previously a law professor at the University of Strathclyde’s Glasgow Graduate School, where he was co-director
of the LPC.
Avrom Sherr Sherr is the Woolf Professor of Legal Education and director of the University of London’s Institute of Advanced Legal Studies.
From 1995 to 2000 he was a member of ACLEC. Following that he joined the Legal Services Complaints Commissioner’s legal services consumer board.
The steering panel
Dame Janet Gaymer The former senior partner of London-based global law firm Simmons & Simmons is currently one of the independent lay members of the Speaker’s Committee for the Independent Parliamentary Standards Authority and a member of the Board of the Financial Ombudsman Service.
Sir Mark Potter Called to the bar in 1963 and made up to QC in 1981, in 1988 Potter was appointed to the Commercial Court bench of the High Court and promoted to the Appeal Court in 1996. Between 2000 and 2005 he chaired ACLEC, before doing a five-year stint as president of the Family Court.