Professor Jane ChingNottingham Trent University

Professor Paul MahargAustralian National University

Legal Professions and Professional Legal Education in

England and Wales

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preview

We shall – discuss the shape of the legal services sector in England and Wales,

including the alternative business structure (ABS) position consider the emerging educational frameworks for the legal professions

in England and Wales, in the light of and after the Legal Education and Training Review report in June 2013

compare the regulatory situation in England and Wales with aspects of professional legal education regulation in Australia.

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overview

Legal services regulation in E+W is an example of supercomplexity, LETR showed this extended to legal education in an evidence-based

report that detailed the effects of such complexity The frontline regulatory bodies have replied, in a variety of ways, some

of which are more or less radical There are implications in this process for Australian legal education, its

regulation and global regulation

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The shape of the legal services sector

in the UK

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Barristers, costs lawyers, legal executives, licensed conveyancers, notaries, patent attorneys, registered trade mark attorneys and solicitors … and paralegals, legal secretaries, barristers’ clerks ….

Advocates, solicitors, notaries, patent attorneys, registered trade mark attorneys and regulated paralegals

Barristers, patent attorneys, registered trade mark attorneys, solicitors.

Advocates

Advocates, solicitors (Jersey); advocates (Guernsey)

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Scotland

Become a solicitor/notary: LLB in Scots Law (or three

year training contract plus exams)

Diploma in Professional Practice

Two year traineeship. Become an advocate:

Complete (almost) all of the solicitor route

Pass Faculty of Advocates exams

8-9 month period of devilling

Become a registered paralegal Become an IP attorney

Alternative business structures will be available in Scotland under the Legal Services (Scotland) Act 2010, but in a different model from that available in England and Wales

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Northern Ireland

Become a solicitor: Recognised law degree Vocational course in parallel

with two year training contract Become a barrister:

Recognised law degree Diploma in Professional Legal

Studies 12 month pupillage

Become an IP attorney

Alternative business structures were rejected in 2005.

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Crown Dependencies

Isle of Man LLB/GDL LPC or BPTC Two years of articles, during which you must pass

the Manx Bar exams

Jersey LLB/GDL Jersey Law course and examinations during practical

experience (2 years for an advocate, 3 for a solicitor) Jersey solicitors can become advocates after 3 years,

otherwise advocates must have previously qualified as a solicitor/barrister elsewhere in the UK

Guernsey/Alderney/Sark Qualify as a barrister or solicitor elsewhere in the UK Certificat d’Etudes Juridiques Françaises et

Normandes Guernsey Bar examinations before or after 6-12

months pupillage

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England and Wales

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Legal Professions in England and Wales

Regulated under the Legal Services Act 2007 Solicitor (138,243 with practising certificates) Barrister (15,279 in practice) Chartered Legal Executive (7,927, but c 20,000 CILEx members) Patent Attorney (2,034) Licensed Conveyancer/CLC probate practitioners (1,222) Registered Trade Mark Attorney (794) Notary (792) Costs Lawyer (562) [some accountants]

Regulated separately Claims Manager Immigration Advisor

Not currently regulated Paralegals Will writers

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Legal Services Act 2007

The regulatory objectives (a) protecting and promoting the public interest; (b) supporting the constitutional principle of the rule of law; (c) improving access to justice; (d) protecting and promoting the interests of consumers; (e) promoting competition in the provision of services within subsection (2); (f) encouraging an independent, strong, diverse and effective legal profession; (g) increasing public understanding of the citizen's legal rights and duties; (h) promoting and maintaining adherence to the professional principles.

“reserved legal activity” (a) the exercise of a right of audience; (b) the conduct of litigation; (c) reserved instrument activities; (d) probate activities; (e) notarial activities; (f) the administration of oaths.

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Professional Bodies/Regulators

Professional body Regulator

Law Society of England and Wales Solicitors Regulation Authority

Bar Council Bar Standards Board

Chartered Institute of Legal Executives CILEx Regulation

Association of Costs Lawyers Costs Lawyer Standards Board

ITMA/CIPA Intellectual Property Regulation Board

Society of Licensed Conveyancers Council for Licensed Conveyancers

Notaries Society/Society of Scriveners of the City of London

Faculty Office of the Archbishop of Canterbury

Legal Services Board

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and the ABS regulatory position is…

Who From No of ABSs

Which reserved activities

Rights of audience

Litigation Reserved instrument

activities

Probate Notarial activities

Oaths

CLC 2011 46 (related to conveyancing only)

SRA 2012 344

ICAEW 2014 53

IPReg Some entity licensing from 2010, ABSs from 2015

(related to IP only) (related to IP only) (related to IP only)

BSB Entity licensing from 2015 (ABSs later)

CILEX Reg Entity licensing from 2015 (not ABS)

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And you thought that was complicated…

15Skills for Justice, ‘Route Maps of Entry Legal Profession’ (Skills for Justice) <http://www.sfjuk.com/wp-content/uploads/2012/12/Visio-RouteMapsOfEntryLegalProfession_FullMap-0513.pdf> accessed 8 February 2015

16Skills for Justice, ‘Route Maps of Entry Legal Profession’ (Skills for Justice) <http://www.sfjuk.com/wp-content/uploads/2012/12/Visio-RouteMapsOfEntryLegalProfession_FullMap-0513.pdf> accessed 8 February 2015

17Skills for Justice, ‘Route Maps of Entry Legal Profession’ (Skills for Justice) <http://www.sfjuk.com/wp-content/uploads/2012/12/Visio-RouteMapsOfEntryLegalProfession_FullMap-0513.pdf> accessed 8 February 2015

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Based on a law degree Solicitors (plus LPC, plus training

contract)Barristers (plus BPTC, plus

pupillage)

A degree not required (but you might get credit if you

have one)Chartered Legal Executive

Costs lawyerLicensed conveyancer/CLC

probate practitioner

(At least one) degree required and possible credit for a law degree

Patent attorneysRegistered trade mark

attorneysNotaries

LLB and GDL

who needs a law degree?

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Academics: the LLB isn’t designed as professional preparation Hands off!

Regulator: we agree, so an LLB isn’t mandatory! Don’t expect us to do your recruitment for you!

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Academics: ‘the LLB isn’t designed as professional preparation. Hands off!’

Regulator: ‘we agree, so an LLB isn’t mandatory. Don’t expect us to do your recruitment for you!’

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Academics: ‘the LLB isn’t designed as professional preparation. Hands off!’

Regulator: ‘we agree, so an LLB isn’t mandatory. Don’t expect us to do your recruitment for you!’

But the GDL is designed as

professional preparation?

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“ ...promoting competition in the provision of services”

Chartered Institute of Legal Executives, ‘Infographic’ <http://www.cilex.org.uk/pdf/Infographic%20A5.pdf> accessed 23 February 2015

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Legal Education and Training Review Report (June 2013)

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Webb J., Ching, J., Maharg, P., Sherr, A. (2013). ‘Setting Standards: The Future of Legal Services Education and Training Regulation in

England and Wales’http://letr.org.uk/the-report/index.html

http://ials.sas.ac.uk/research/LETR_report.htm

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research questions

1. What are the skills/knowledge/experience currently required by the legal services sector?

2. What skills/knowledge/experience will be required by the legal services sector in 2020?

3. What kind of legal services education and training (LSET) system(s) will deliver the regulatory objectives of the Legal Services Act?

4. What kind of LSET system(s) will promote flexibility, social mobility and diversity?

5. What will be required to ensure the responsiveness of the LSET system to  emerging needs?

6. What scope is there to move towards sector-wide outcomes/activity-based regulation?

7. What need is there (if any) for extension of regulation to currently non-regulated groups?

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Quality of: Professionalism and ethics Competence standard, especially on baselines Addressing “gaps” such as

Legal research and digital literacy Communication skills (including writing and advocacy) Commercial and social awareness Management skills Equality and diversity outcomes Thinking about continuing competence

we drew conclusions about…

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Consistency and quality assurance Assessing outcomes Supervision and learning in the workplace Specialist accreditations CPD and continuing learning

Cost of training Apprenticeships Blending work and study differently Accrediting work in different environments

we drew conclusions about…

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Access and mobility Equality and diversity in entry Fast track entry for people with experience Mobility between routes and professions Information

Flexibility Different routes to the same end Different configurations

Future research LETR’s just the beginning of a process…

we drew conclusions about…

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we recommended

Regulators should state outcomes and standards Outcomes defined by reference to the knowledge, skills and attributes of a

competent practitioner Standards set Co-ordination and collaboration

Review some content, ie Redraft ethics, legal research, written and oral communication skills Introduce concepts of morality and law, values and the role of lawyers Post-qualification: focus on professional conduct, management, and equality

& diversity by taking account of educational research Adjust the balances in the LLB/GDL Assess research, writing and critical thinking in the LLB/GDL Adjust the vocational courses

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Flexible structures Working and studying in different configurations Adjusting periods of supervised practice (such as the training contract) Focusing CPD on learning, not just “hours” Supporting apprenticeships, access to internships and placements, progression

for paralegals, voluntary regulation of paralegals outside regulated organisations

Provision of information On diversity On careers, options, research, opportunities Sharing of good practices, research etc between

providers, regulators and government.

we recommended

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what we said onassessment standards

4.50 “a move to OBET … may improve reliability of assessment techniques, rather than the reverse”

4.111 “Existing assessment strategies tend to focus on conformity as a proxy for consistency”

4.123 There is a legitimate regulatory interest in ensuring that assessment is robust. It must be

capable of assessing that which it sets out to assess (valid); it must produce consistent and replicable results (reliable); and it must assess against the

syllabus and learning outcomesthat have been set out (fair)

4.123 “Standardisation … can be achieved by extending the number of credible judgments in

respect of a task, and by ensuring that those judgments are collected and evaluated

systematically”

Outcomes, shared standards and standardisation

4.50 “a move to OBET … may improve reliability of assessment techniques, rather than the reverse”

4.111 “Existing assessment strategies tend to focus on conformity as a proxy

for consistency”

4.123 There is a legitimate regulatory interest in ensuring that assessment is robust. It must be capable of assessing that which it sets out to assess (valid); it must produce consistent and replicable results (reliable); and it must assess

against the syllabus and learning outcomes that have been set out (fair)

4.123 “Standardisation … can be achieved by extending the number of

credible judgments in respect of a task, and by ensuring that those judgments

are collected and evaluated systematically”

Outcomes, shared standards and

standardisation

Thanx Julia

n…

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assessment of outcomes at the heart of the system

4.145Assessment is at the heart of LSET since it provides the key means of demonstrating that outcomes have been met. LSET requires more robust and more creative approaches to assessment. The report therefore makes recommendations to ensure that legal values are assessed pervasively, and legal writing and critical thinking assessed discretely at the academic stage (or its equivalent). It proposes ways in which client communication skills could be assessed more realistically; it also suggests that the greater integration of classroom and workplace learning would increase the reliability and practice validity of the assessment of professional skills.

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Colin Scott’s approach: ‘a more fruitful approach would be to seek to understand where the

capacities lie within the existing regimes, and perhaps to strengthen those which appear to pull in the right direction and seek to inhibit those that pull in the wrong way’

‘meta-review’: ‘all social and economic spheres in which governments or others might have an interest in controlling already have within mechanisms of steering – whether through hierarchy, competition, community, design or some combination thereof’ (2008, 27).

Our approach: Shared space

regulatory approaches

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Norms Feedback Behavioural modification

Example Variant

Hierarchical Legal Rules Monitoring Powers/Duties

Legal Sanctions

Classic Agency Model

Contractual Rule-making & Enforcement

Competition Price / Quality Ratio

Outcomes of Competition

Striving to Perform Better

Markets Promotion Systems

Community Social Norms Social Observation

Social Sanctions, eg Ostracization

Villages, Clubs

Professional Ordering

Design Fixed with Architecture

Lack of Response

Physical Inhibition

Parking Bollards

Software Code

Modalities of control (Murray & Scott 2002)

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regulatory alternative of shared space

Shared spaces concept in traffic zones: Redistributes risk among road users Treats road users as responsible, imaginative, human Holds that environment is a stronger influence on behaviour than formal rules &

legislation.‘All those signs are saying to cars,

“this is your space, and we haveorganized your behavior so thatas long as you behave this way,

nothing can happen to you.” That is the wrong story’.

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participative regulation

Portrait of the regulator as: Not QA but QE – Quality Enhancer, to focus on culture shifts towards

innovation, imagination, change for a democratic society A hub of creativity, shared research, shared practices & guardian of

debate around that hub Initiating cycles of funding, research, feedback, feedforward Archive of ed tech memory in the discipline Founder of interdisciplinary, inter-professional trading zones

Regulator as democratic designer

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And what happened next…?

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the Legal Services Board

Over time we expect regulators to have in place regulatory arrangements for education and training that deliver the following outcomes: Education and training requirements focus on what an individual must know,

understand and be able to do at the point of authorisation Providers of education and training have the flexibility to determine how to

deliver training, education and experience that meets the outcomes required Standards are set that find the right balance between what is required at the

point of authorisation and what can be fulfilled through ongoing competency requirements

Regulators successfully balance obligations for education and training between the individual and the entity both at the point of entry and on an ongoing basis

Regulators place no inappropriate direct or indirect restrictions on the numbers entering the profession

Legal Services Board, ‘Statutory Guidance on Legal Education and Training’ <http://www.legalservicesboard.org.uk/news_publications/press_releases/pdf/20140304_LSB_Education_And_Training_Consultation_Response_And_Guidance.pdf> accessed 19 May 2015Legal Services Board, ‘Increasing Flexibility in Legal  Education and Training’ <http://www.legalservicesboard.org.uk/what_we_do/consultations/open/pdf/20130918_consultation_paper_on_guidance_for_education_and_training_FINAL_for_publication.pdf>

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CILEx Regulation

Embraced apprenticeships Obtained rights to independent practice (and changed its

name as a result) including litigation and immigration “Figures revealed last month by the Central Applications

Board admissions service showed that the number of applications for the LPC’s 2014/15 session have decreased by 10% compared to the previous year, however, the number of applications for CILEx’s specialised graduate programme has increased by 32% during the same period.” (August 2014)

Sponsored a “paralegal enquiry”

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Bar Standards Board

Plans: Developing a competency framework for barristers Aligning the Bar Training Regulations (BTRs) to modern regulatory

standards Establishing an outcomes-focused approach to continuing professional

development Sharing data to support our regulatory objectives in education & training Improving access routes to the profession Collaborative development of Academic Stage regulation

Consulting on a competence statement “Assessing” alternatives to a graduate route Possible flexibility and freeing up of the BPTC from 2017, if focus is on

outcomes “We are not convinced there is a need for us to prescribe the structure of

pupillage” – consultation planned Piloting and consulting on a non-hours based CPD approach

Bar Standards Board, https://www.barstandardsboard.org.uk/media/1650565/future_bar_training_programme_update_february_2015_pdf__va499362_.pdfBar Standards Board, ‘Future Bar Training Continuing Professional Development (CPD)’ <https://www.barstandardsboard.org.uk/media/1668707/cpd_consultation_2015.pdf>

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Solicitors Regulation Authority

Currently involved in ‘Training for tomorrow’ project: Qualification stage:

Competence statement Consultation on a (possibly centralised) assessment

Implications for LLB/GDL; LPC, training contract “Equivalent means to bypass any of the three stages Apprenticeships

Post qualification Competence statement now in place for qualified

solicitors Non-hours based CPD model adopted

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regulating irregularly?

In Australia, the example of the ANU GDLP – innovation that is permitted by a regulator in ACT, with light touch

But cross-jurisdictional accreditation? Multiple regulators? Multiple standards? Is the field becoming ungovernable?

Accreditation standards at HE and professional stages? How do we prevent supercomplexity, promote diversity,

ensure outcomes & standard, and a regulatory process that’s based on sound first principles?

Are we not facing the same problems here? In every jurisdiction?

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LETR Recommendation 25

A body, the ‘Legal Education Council’, should be established to provide a forum for the coordination of the continuing review of LSET and to advise the approved regulators on LSET regulation and effective practice. The Council should also oversee a collaborative hub of legal information resources and activities able to perform the following functions:

Data archive (including diversity monitoring and evaluation of diversity initiatives);

Advice shop (careers information); Legal Education Laboratory (supporting collaborative research and

development); Clearing house (advertising work experience; advising on transfer regulations

and reviewing disputed transfer decisions).

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contact

Jane Ching, Professor of Professional Legal Education, Nottingham Law School, Nottingham Trent University, jane.ching@ntu.ac.uk

Paul Maharg, Professor of Law, ANU, paul.maharg@anu.edu.au

Slides @ http://paulmaharg.com.