The real test
27 October 2010 | Updated: 27 October 2010 11:09 am
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SRA’s new transfer scheme for overseas qualified lawyers is tougher - but fairer.
A new regime was put in place for overseas-qualified lawyers and English barristers who wish to qualify as English solicitors on 1 September. So what is it and how is it different from the old Qualified Lawyers Transfer Test (QLTT)?
The new scheme
To distinguish the new system from the old, the Solicitors Regulation Authority (SRA) has called it the Qualified Lawyers Transfer Scheme (QLTS). Although the terminology carries with it the slightly unfortunate connotation of something cooked-up and underhand, the new name does in fact reflect more accurately the introduction of a varied scheme of assessment.
The QLTS consists of an initial three-hour multiple-choice test to assess candidates’ knowledge of English law, followed by three three-hour oral legal skills assessments called the Objective Structured Clinical Examination (OSCE) and a further three two-and-a-half-hour written legal skills assessments, called the Technical Legal Skills Test (TLST).
It is likely that the OSCE and TLST will be offered only in England, although the multiple-choice test may be available internationally. There is no experience requirement, but candidates will have to satisfy an English language requirement.
Overall, and subject to certain reservations, it is an attractive and coherent model, incorporating for the first time a dedicated test of English law and substantial practical skills assessments. The total of around 20 hours’ assessment time represents a substantially more rigorous assessment process than that needed for the QLTT. The four heads of the QLTT represented around 10 hours’ assessment time, and many candidates did not need to take all four.
The multiple-choice test
As stated, the multiple choice test will be at least three hours long. It must include at least 90 questions and assess the full range of English law - law of obligations, property, equity, criminal law, constitutional law, human rights and business structures, as well as professional conduct and financial regulation. It is likely the test will be offered electronically. Candidates must pass this test before they can proceed to the second and third parts of the assessment.
The inclusion in the QLTS of a test of substantive English law will be widely welcomed. However, a single three-hour multiple-choice test is a very slight mechanism for the assessment of what amounts to the entire syllabus of an undergraduate law degree, with professional conduct and financial services on top.
Designing a test that covers the full range of the syllabus and assesses it in sufficient depth is a significant challenge. Meanwhile, for candidates, revising the range of material that is potentially examinable will be a tall order.
OSCEs are interviewing and advocacy simulations; they will be used to assess property and probate, civil and criminal litigation, and business. There will be one OSCE cycle for each of these three areas. In each cycle the candidate will have to conduct a client interview lasting 20 minutes, write up an attendance note and perform a piece of advocacy lasting 15 minutes.
Candidates will be allowed preparation time for each exercise in the cycle, so that each cycle will last around three hours.
This is a model of assessment that the SRA has borrowed from medical training. It is similar to the interviewing and advocacy skills assessments with which Legal Practice Course (LPC) students are familiar, but it develops the LPC-style assessment in significant ways. In particular, the person playing the role of the client is what the SRA terms a “standardised client”. The standardised client is a lay person who is appropriate in age, race and gender to the client description in the assessment, so as to make it realistic. The individuals involved will be highly trained, both to ensure consistency of performance and to enable them to participate in the assessment process itself. For it will be the clients themselves who assess whether the candidate has met the relevant skills criteria.
By way of an example, after an interview it will be the client who will assess issues such as whether the lawyer’s greeting was appropriate, whether they felt that the lawyer listened to them, whether they felt comfortable with the lawyer and if they understood what the lawyer was saying.
There will be a separate assessment of the technical and legal accuracy of the candidate’s simulation, but the majority of the marks for the assessment will come from the client.
The OSCE looks to be an imaginative and rigorous assessment tool. The introduction of the standardised client addresses many problems with which LPC providers who use actors for interviewing skills assessments are all too familiar - the client who misunderstands the script, the one who volunteers too much information or, conversely, holds too much back, and so on.
The high level of training required for standardised clients should enable the development of sophisticated and rigorous assessment exercises and accurate discrimination between candidates who demonstrate appropriate legal skills and those who do not.
The final piece of the jigsaw is the test of written skills. This also tests property and probate, civil and criminal litigation, and business, but this time is structured around the skills of online research, writing and drafting.
Candidates will be provided with a fact pack and instructions and given 20 minutes to read this material. They will then be required to undertake a piece of online legal research lasting 45 minutes, following which they will write up their results (30 minutes) and draft an appropriate document (45 minutes).
As with the OSCE, the TLST cycle will run three times, resulting in an assessment time of around seven and a half hours, including preparation.
The test provider
The SRA recognises that this testing regime is complex and challenging, so in order to retain control over the test in its initial phases it has decided to authorise a single test provider for the first three years - Kaplan QLTS. The first multiple-choice test will be offered by Kaplan in January 2011.
As the test provider, Kaplan will not be permitted to offer tuition for the QLTS. This leaves other providers free to offer training to candidates preparing to take the test. The SRA will not regulate the provision of training for the QLTS.
The SRA has also changed the eligibility requirements for the QLTS. There will no longer be a requirement to demonstrate experience of practice. However, the SRA expects that only individuals who have significant experience of and exposure to English law and practice will be able to pass.
Barristers who have not yet completed pupillage will be unable to take the test. But the SRA has widened the list of jurisdictions entitled to transfer under the QLTS.
The new list of eligible jurisdictions is on the SRA website (www.sra.org.uk), and includes Brazil, China and Russia. The list is still being updated as jurisdictions complete the SRA application process. So although at the time of writing India does not appear on the list and the only US jurisdiction is California, India and other US states are likely to be added.
It is widely known that, since the introduction of the QLTT, the number of English solicitors qualifying through this route has soared, reaching around 26 per cent of newly qualified solicitors. So will this trend continue under the QLTS?
Well, most commentators believe demand for the QLTS is likely to be substantially lower than that for the QLTT. First, it is a more difficult transfer route, particularly
for candidates from India, New Zealand and Australia, who under the QLTT were required to take only a single test. Second, lawyers who are not undertaking reserved legal work can practise within the jurisdiction as registered foreign or European lawyers. Finally, the introduction of multidisciplinary partnerships (MDPs) means it is no longer necessary
to become an English solicitor to take partnership.
Nevertheless, there will always be individuals who are moving to England and Wales permanently, or those seeking the qualification to bolster their CVs in their
home jurisdictions, for whom it is appropriate to qualify as a solicitor. Regardless of whether the QLTS occupies such a large sector of the legal training market as its predecessor, the influence of the new scheme is likely to be felt throughout the training sector as innovative assessment methods filter through to the LPC and other programmes.
Julie Brannan is the director of Oxford Institute of Legal Practice