The proposed opening up of the training regime have provoked a vociferous response from many quarters. Rachel Rothwell looks at the proposals, and the rationale behind them
Forget Sir David Clementi’s review of the legal profession, diminishing legal aid rates or authoritarian money laundering laws – if there is one topic that has got the profession worked up at the moment, it is the training of aspiring lawyers.
Proposals drawn up by the Law Society’s training framework review group (TFRG) – put out for a 12-week consultation last month – would turn the current prescriptive approach to training on its head.
Few would argue with the main aim of the proposals, which is to increase access to the profession for people from a more diverse range of backgrounds, and ensure solicitors have all the skills they need for today’s demanding environment. But opinion is divided on whether what is on the table is the best way to achieve that. The plans have met vehement and vocal opposition from training providers and many firms, but have been warmly welcomed in other quarters, such as the Trainee Solicitors Group (TSG) (see [2005] Gazette, 17 February, 8).
So what exactly is in the proposals? The Law Society would step away completely from any regulation of the legal practice course (LPC), which would no longer be compulsory. But in moving to what is called an outcomes-based approach, it would instigate ‘rigorous’ assessment of the skills and knowledge a would-be solicitor must have before he or she could enter the profession. Candidates would need an honours degree or equivalent, though it would not necessarily need to be in law, and would have to pass an exam testing legal knowledge.
Work-based training would still be compulsory, and unlike the academic training, this would be more closely regulated than at present. Before students qualify, they would need to show they have achieved a set of ‘day one’ outcomes, including analytical skills, core knowledge of the law, ability to complete transactions and resolve disputes, and understanding of ethics – although it is not quite going back to the days when a panel of practitioners would interview prospective solicitors to check their suitability for the profession.
The aspect of the new proposals that has caused the greatest consternation – and not only by those with a vested interest – is the plan to abolish regulation of the LPC. The LPC can currently cost students as much as £9,000 to complete. But for many LPC students, who may have gained experience as a paralegal or simply be very bright, the full year’s LPC may be unnecessary.
Andrew Holroyd, chairman of the Law Society’s standards board which put the proposals to the Law Society Council last month, explains: ‘What we are trying to say with the proposals is, why should someone who has been, for example, a Citizen’s Advice Bureau employee who has done plenty of tribunal work, have to pay for the LPC advocacy training when they could just walk into the assessment and pass it? This will help people who have already built up the skills in another career.’
The TSG welcomes this, because allowing people to use work experience as part of their qualification could reduce many students’ debt problems, which are compounded by the cost of the LPC.
If the LPC is no longer subject to rigid parameters, that will enable course providers to create programmes that are better tailored to their students. But the fear is that it could also lead to a demand for ‘crammer courses’, which may help a student to pass the assessment but will not teach them all they really need to know.
Peter Crisp, chief executive of LPC provider BPP, refuses to rule out the idea of offering crammer courses. He says: ‘It is not necessarily desirable that you cram a vocational course into three months, unless you have the right exposure before and after the course. It is something we will consider, but we will want to see sound educational reasons for doing it.
‘We would want to look at delivering the LPC by distance learning, or blended learning, and that kind of flexibility is very welcome.’
But he adds: ‘We are concerned that a purely outcomes-based approach could lead to a lowering of standards – a candidate could have a lucky day and pass, without the depth of experience the LPC provides. At the moment, the LPC is a great leveller, one yardstick that everybody is measured against.’
He warns: ‘This is being railroaded through very fast. But the current proposals are so flexible that they could actually create uncertainty over how to qualify. I would prefer to see a number of approved routes.’
Professor Phil Knott of Nottingham Law School and one of two ‘minority’ members of the TFRG – along with Melissa Hardee, LPC director at the Inns of Court School of Law – who are vehemently opposed to the proposals, is also worried about a drop in standards. He says: ‘The LPC requirements should be relaxed so that you just identify the broad structure of learning. But I have reservations about specialist LPC courses. I think it is healthy to have a core element that all would-be solicitors must engage in, which at the moment is business law, property law and litigation. Our experience is that people who have been in practice without structured learning do need to embed what they have learned, and sometimes it needs to be corrected. Ethics in particular needs to actually be learned rather than just tested.’
He adds: ‘It is ironic that the reason why the LPC costs so much at the moment is that there is so much rigidity and prescription in the requirements set out by the Law Society. If you take that out, the market will respond. The key to the whole thing is to provide flexibility within the LPC, and then between them the law firms, training providers and students will – through the market-place – create the appropriate course in terms of length, content and cost. But the argument that there should be no structured training runs the risk of not protecting standards.’
However, Mr Holroyd is adamant that standards will be maintained. He says: ‘We would not proceed with the proposals if we were not satisfied that they will maintain standards, and we believe the assessment can be made robust. In fact, some would say there will be a ratcheting up of standards. No system can be perfect, but the current system is open to question, in terms of discrepancies between those who pass with some training providers as opposed to others. There will be more external examiners instead.’
Radical as the proposals sound, many maintain that the impact on the present LPC would actually be slight – because at the end of the day, the City firms and many others would still prefer the assurance that a candidate has completed the course. With firms already dealing with far more applications for traineeships than they have places – some firms receive more than 1,000 applications for 25 places – they are in a position to demand whatever they want.
Mr Crisp says: ‘The vast majority of people going into the profession will do so based on the current formula. The profession wants people to have gone through a rigorous training process and the LPC has worked very well in providing this. The City firms will prefer candidates who have done the full LPC.’
Deborah Dalgleish, head of graduate recruitment at magic circle firm Freshfields Bruckhaus Deringer, confirms this view. She says: ‘It is hugely important that the profession is full of people of a very high standard, and that it is perceived to be so. At the moment, there is certainty – you have to have a set academic training followed by a training contract. There is a danger this would not be the case with the new approach.
‘City firms will want to be very sure of the quality of the people they are recruiting. If they have done the LPC, you know what they have been taught.’
Mr Knott adds: ‘You could end up creating pathways into culs-de-sac, if lots of the pathways that you open up are not ones that the profession supports. A lot of firms will still insist on the full LPC – that is certainly the message I have been given.’
If the proposals advocate a more hands-off approach when it comes to the academic learning required, then the opposite is true for the new-style training contracts. A period of work-based learning would be a necessary part of qualification, and that would not be restricted to law firms but could include time spent in a student law office. But trainees would have to do more than simply hang on in for two years without getting booted out by their firms, as they do in the current system.
Indeed, TFRG research has uncovered anecdotal evidence that training principals are currently reluctant to jeopardise a trainee’s career by refusing to sign them off, even if they may not be of the desired calibre. Instead, would-be solicitors would have to compile a portfolio during their training detailing exactly how they have acquired 12 set outcomes, writing 500-1,000 words on each.
There would be at least four appraisals during the work-based learning, which must be taken at intervals of four to six months. That means the new training contract would have to last at least a year and four months, with no upper limit on how long a student can take to complete it. The new-style training contract would have to be supervised by a solicitor with at least three years’ post-qualification experience, who has undergone specific training in supervisory skills.
It is in improving the quality of traineeships that the TSG sees major benefits from the reform plans. Rather than being glorified clerks who sit behind counsel, make tea and paginate, trainees will have to have proper work to do so they can complete their portfolios.
But Simon Mumford, Law Society Council member for south Wales, who represents many small and medium-sized firms, says his constituents have been alarmed by this aspect of the proposals. He says: ‘My constituents are implacably opposed to the proposals. They are worried about their survival as it is, and to expect them to take on this extra burden is unfair.
‘The training that is required at the moment does not have the same intensity as that envisaged by the proposals. There are already very few traineeships out there as it is – do we want to go back to the days of articled clerks where students have to pay a firm to take them on? This will put firms off taking on trainees.’
He adds: ‘I have been amazed by the response I have received from constituents over this – it has exercised their minds and vocal chords far more than Clementi did.
‘My own view is that there are many benefits to the proposals, but they will work better for the larger firms that already have in-house training. Smaller firms believe it is just going to add cost.’
But Mr Holroyd counters: ‘Some elements of the proposals will put an extra financial burden on firms, but there will no longer be a minimum salary for trainees, and it will no longer be necessary to pay for the professional skills course.
‘At the moment, once you have passed the LPC and completed a training contract, you are in – no matter how incompetent you may be as a solicitor. This is going to be tough for some people who go through the process and fail at the end of the day, but we owe it to the public to ensure that there are no incompetent solicitors.’
Key proposals for the new training framework contained in the Law Society’s consultation:
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