The profession’s regulators face complex and overlapping challenges in creating a legal education system which shifts the focus from the ‘journey’ to the point of qualification.
With headlines ranging from the ‘most far-reaching changes’ to legal education and training for over 40 years to a ‘leap of faith’ in a huge programme that could take years to achieve, aspiring solicitors can be forgiven for wondering what the future holds for them.
During November, the Solicitors Regulation Authority (SRA) will hold roadshows for practitioners, training providers, trainees and students to set out its vision of a legal education system where the regulatory focus shifts from the journey to the point of qualification.
By drawing up a competency framework which sets out the ‘day-one’ outcomes a newly qualified solicitor should achieve in terms of knowledge, skills and attributes, the SRA believes it can pull back from prescribing the route to get there.
The pressure will then be on higher education institutions, vocational training providers and employers to come up with innovative ways of achieving those outcomes, and so widen access through apprenticeships and integrated academic, vocational and ‘on the job’ training courses.
But big questions arise out of the SRA’s Training for Tomorrow response to the Legal Education and Training Review (LETR) report. One is how those outcomes will be assessed to ensure consistent standards across the different routes to qualification, raising the spectre for some of a ‘do or die’ centralised assessment reminiscent of the old Law Society finals.
Whatever the final regime (and the SRA has set itself a tight timetable for research and consultations) the new measures will need to be rigorously tested, so any changes will not come into force until 2017/18 at the earliest.
However, before dissecting the proposed changes, it may be helpful to set the scene as it is today, with demand for junior lawyers unlikely to return to pre-crash levels and the Law Society issuing a ‘health warning’ to students about the difficulties of qualifying.
The latest Chambers Student Guide gives an insight into the current prospects for a career in law, based on thousands of interviews with trainees and market sources.
While applications for the qualifying law degree (QLD) have largely held up, fears about the cost, and shortage of training contracts (at their lowest level since 1999) have contributed to a 40% drop in Legal Practice Course (LPC) students. So far 6,018 have registered with the SRA this year, compared with 9,648 in 2008.
If you do get the ‘holy grail’ of a training contract, the odds of being retained are promising, at an average of 76% in regional and national firms, and 79% in London firms, based on the guide’s survey of firms with 10 or more trainees.
There is a sting in the tail, though. The Guide’s editor, Antony Cooke, points out that the number of qualifiers was far lower than in 2012, so this year saw a lower proportion of a smaller number of trainees kept on.
New ways into the profession
With the shortage of training contracts acting as a market brake, firms are finding creative ways of offering alternative routes into the profession, including legal apprenticeships. Forty-six school-leavers who signed up to a scheme in Greater Manchester are now working in a range of law firms, a housing association and a local council, with staff from Manchester Law School visiting them in the workplace to review their competence.
So the question now is whether the SRA’s grand scheme can deliver on its promises to open up access, while still ensuring the right calibre of solicitors qualify to meet the needs of a rapidly changing legal market.
The starting point is drafting the competency framework. Lessons have been learnt from the previous attempt at setting day-one outcomes which failed, according to the SRA, because they were not followed through, while the prescriptive route to qualification created unnecessary barriers and inhibited flexibility.
Professor Richard Moorhead is director of the Centre for Ethics and Law at University College London. He believes the extent to which the system will change will depend on the content of the outcomes. Day-one outcomes which specify significant knowledge in each of the foundation subjects will lead to less change than a liberal definition of what qualifies a solicitor.
‘My guess is firms will be responsible for satisfying themselves that the candidates have the relevant subject-specific knowledge,’ he says. ‘Thus the core knowledge and skills would be narrower: research skills, ethics and core concepts applicable to legal work.’
Specialist knowledge may need to be deeper and tested more effectively, he says, but the SRA will be wary of specifying too much except in high-risk areas.
‘I don’t think anyone will be able to satisfy day-one outcomes simply by doing a very narrow qualification in a particular area,’ says Miceál Barden, head of Manchester Law School. ‘It would not be in the SRA’s interests. They will want something which shows people have a sufficiently broad understanding of the legal world.
‘Ultimately this has to be sold to the people who will be employing the applicants and they have to be satisfied that someone who comes through a non-traditional route is employable. This is why I think the apprenticeship route will prove very interesting, because they will, generally, have been in the organisation for several years and will be well known to it, so they will be seen as much less of a risk.’
One of the difficulties of setting the outcomes is the disparate nature of the profession, from global giants to sole practitioners. As Trowers & Hamlins’ training principal Tonia Secker points out: ‘I think the SRA probably recognises that the outcomes, which must be consistent and to a high standard, will need to be tailored to firm types or we could find ourselves in the awkward position where no one satisfies all of the outcomes.’
The next step will be to decide who will assess whether someone has achieved those outcomes – and how. Possible models include the Qualified Lawyers Transfer Scheme, which the SRA restructured so it has a single assessment body, or the centralised assessment elements of the Bar Professional Training Course.
But setting up a centralised assessment scheme risks being a hugely bureaucratic job, warns Barden. Cath Sylvester, principal lecturer at Northumbria University School of Law, says: ‘If you use the outcomes-focused approach to open up different routes to qualification, you risk closing them back down again if you stick on the end of it a “one-size-fits-all” assessment.’
A potentially cheaper and easier to organise option could be a portfolio approach. ‘But again who would assess them?’ asks Tony King, director of the Clifford Chance Academy. ‘If it is someone outside the employing organisation, there will be issues of confidentiality, so it would seem sensible for it to be done internally. The SRA could set some standards to authorise firms to review the portfolios, with some form of monitoring to ensure they were reviewing effectively.’
If the SRA does step back from prescribing the route to qualification, this will probably have an impact on the current graduate route.
‘It depends a bit on what the bar does,’ says Moorhead, ‘but the logic would be for a much less restrictive QLD, if one exists at all. And at the very least a slimmer, cheaper LPC core, without the need to cover all reserved areas of work, while the need for firms to have training contracts may reduce or disappear.’
But, he cautions, having a smaller core defining what a solicitor is may reduce the need for solicitors.
Certainly, law schools which rely on the traditional model are likely to suffer, says Barden. ‘This is why we got involved in the apprenticeship scheme. We were having students coming to open days who were predicted 2As and a B, but were undecided about going to university, so we see the future as being a mixed economy.’
‘This is not about dumbing down’
Julie Brannan has taken over as the SRA’s director of education and training at a pivotal moment for the profession.
She brings with her a strong background in both private practice and legal education. She started her career at Herbert Smith Freehills, where she became an international commercial litigation partner.
From 2004 to 2011 she was director of the Oxford Institute of Legal Practice, where she led the work-based learning pilot involving trainee solicitors for the SRA, before taking over responsibility for business development at the Faculty of Humanities and Social Sciences at Oxford Brookes University.
One of the challenges of her new job will be to get the profession involved following the disappointingly poor response from firms and practitioners to the LETR. As Brannan says: ‘This is your opportunity to help shape training for the future.’
Field work has already started with solicitors from a range of practice areas being quizzed about the knowledge, skills and attributes that practitioners need on qualification. This should be completed early next year and will form the basis of the competency framework which will then go out for consultation.
The next step will be to look at the processes leading up to those day-one competencies and the extent to which the SRA can draw back from prescribing them.
The ‘beauty’ of the approach, she says, is that everyone will be tested against the same set of outcomes whether they are apprentices or graduates, which should remove concerns that some routes could be seen as second-rate.
The big question then is how those would-be solicitors will be assessed as having met the day-one outcomes.
Brannan says the SRA will be looking at that early next year. Possibilities include a centralised assessment or a portfolio approach and she acknowledges that different tools may be needed for assessing a skill as opposed to legal knowledge.
Brannan saw the portfolio approach in action during a work-based learning pilot she oversaw during 2008-2010. This SRA-run scheme saw trainee solicitors produce a portfolio demonstrating they had met the scheme’s 30-plus learning outcomes. These were divided into seven domains – some around technical competence, others around areas such as communication skills and ethics.
‘It was time-consuming,’ she says, ‘but my overwhelming feeling was it helped the trainees become much more reflective about their practice. You could also see very clearly who was on track and who needed support before the final assessment.’
The question of whether a generic ‘solicitor’ qualification is still appropriate, given the increasing trend towards early specialisation, is for ‘further down the line’, she says. The same applies to the questions of whether there should be common training with the bar and whether regulation should be title- or activity-based.
The SRA, Bar Standards Board (BSB) and ILEX Professional Standards have all dismissed the idea of a formal Legal Education Council, but have promised to work together after the SRA and BSB were criticised for pursuing independent strategies.
‘We need to take it one step at a time and the first step is to see if we can harmonise our outcomes with the other regulators as far as possible. We will collaborate where activities overlap but many won’t be identical because solicitors and barristers don’t do the same job.’
The really important message, she stresses, is that this is all about quality. ‘It is not about dumbing down but about removing artificial barriers and ensuring that everyone who qualifies has the right competencies which are rigorously assessed.’
Mixing practical and academic
John Wotton, chair of the Law Society’s education and training committee, says: ‘I would be very surprised if there was any slimming down of the LPC – it is already somewhere near an irreducible minimum. But I would not rule out greater flexibility in the work experience element, although training contracts are not just work experience. They are supervised practice and there are currently concerns about whether all trainees are getting the supervision they should.’
There have already been experiments in merging academic with the practical. Northumbria piloted a five-year course from undergraduate to qualification with students doing the training contract element with local firms and in its student law office.
‘It is a great idea in principle,’ says Sylvester, ‘but we would probably tweak it if we ran it again, because the problem was getting the placements.’
At Eversheds, 12 people are piloting a combined study training contract which required a waiver from the SRA because students did the Professional Skills Course before they finished the LPC. They studied the fast-track LPC until December and then started their training contact in January on the usual trainee wage and will qualify in December 2014.
Ian Gascoigne, Eversheds’ training principal, says the firm would like to repeat it though it would not suit all firms or students. It puts big demands on the employer, he notes, which needs sufficient flexibility to provide cover for trainees while they are studying.
At the heart of the SRA’s plans is improving diversity. But Moorhead warns against overstating this: ‘Cost is only one barrier. The recruitment practices and assumptions of firms about what makes a good student are a bigger problem.’
Junior Lawyers Division chair Heather Iqbal-Rayner says it would welcome alternative routes to qualification, but they will only be effective if people can afford to do them.
She is concerned that the logjam at the training contract stage could just be shifted, with the market ‘flooded with NQ solicitors, which would drive down salaries and create a situation where people have trained for several years only to find themselves without work’.
Secker agrees. Trowers & Hamlins is looking at apprenticeships and wants to encourage wider access, but she warns: ‘It will give you a wider pool of talent to look at and firms will recruit from the different routes, but it will not change the overall number you take on.’
At Travers Smith, co-head of graduate recruitment Caroline Edwards says the current qualification route works well for her firm, but it would welcome changes which remove any artificial barriers.
However, she says an increase in access will also require a material increase in jobs. The key will be to maintain high standards while addressing the risk of exploitation of candidates who access the profession via alternative routes.
The National Apprenticeship Service is very clear about the need to ensure apprentices are well prepared for their final assessments and are ‘work ready’, says interim national director Karen Woodward.
She says it will be for the SRA and the legal sector to design the proposed higher apprenticeship at Level 6. This would provide qualified solicitor status, so individuals can progress from Level 4, where they will have been focusing on a specific area of law.
Cost of training
Whatever the changes, there will be resource implications. Anup Vithlani, Trowers’ graduate recruitment manager, says different pathways would require firms to have different training structures, while Gascoigne notes: ‘We need to have this debate but it will have consequences. It will limit the number of firms wishing to take trainees because it will be more complicated.’
The Legal Services Board fired an early rocket at the regulators, warning them not to try to restrict entry to the profession by regulation. It argued there was unmet demand for lawyers, just not ‘at the current cost’, an intervention dismissed as ‘unnecessary and unhelpful’ by Wotton.
He does not think restoring a non-graduate route, which he suspects will only be used by a minority of people, is revolutionary. ‘There needs to be a safety net for those who are put off university for social or economic reasons,’ he says, ‘but it is inconceivable that most students will not want to go to university and approach the profession in that way.’
But the changes will still have broad consequences, and Wotton questions who will administer the assessment processes, given the SRA will not have the resources to do this.
What is clear is the SRA has got the bit between its teeth, so watch this space.
Grania Langdon-Down is a freelance journalist