Legal education: the right road?

The recruitment round for the 2017 trainee intake is in full swing – and successful candidates will be qualifying on the cusp of potentially huge changes in the qualification process.

The Solicitors Regulation Authority wants to have a new training assessment framework in place for the 2018/19 academic year and has begun ‘focused work’ on one of its proposed options – a ‘centralised assessment of competence’ for all candidates – to see whether it is workable.

It also plans to issue guidance this summer on possible transitional arrangements to clarify the extent to which the authority will recognise people’s learning at the point any new system is introduced.

However, the guidance will only be high-level principles, the SRA’s director of education and training Julie Brannan stresses, because ‘we won’t know what we are transitioning to until the consultation on the assessment framework is completed, probably in 2016’.

In the meantime, taking that final step to qualification remains tough. The continuing mismatch between LPC graduate numbers and the number of trainee places on offer sees thousands of aspiring solicitors chasing fewer opportunities, with leading City firms among those taking fewer on.

This has focused attention on alternative routes, including the new paralegal route opened last year by the 2014 Training Regulations. This replaced the heavily prescribed training contract with the more flexible ‘period of recognised training’ (see case study).

The less prescriptive approach is part of a wider move by the SRA – alongside its withdrawal from the voluntary code on trainee recruitment and its abolition of the minimum trainee salary – to step back from regulating the relationship between trainees and their employers.

While the authority argues it is not part of its regulatory function to be closely involved in what is a private law relationship, junior lawyers fear it could leave trainees more vulnerable than before.

The SRA has proposed three options which it plans to evaluate against criteria of consistency and flexibility, with the aim of issuing a consultation by the end of this year.

These include:

• continuing to prescribe specific pathways – which could be the current route of QLD/CPE + LPC + recognised period of training, subject to them aligning with the competence statement – and authorising providers to deliver them;
• authorising any training pathway proposed by a training provider which enables a candidate to demonstrate they can meet the required standards; and
• developing a centralised assessment of competence for all candidates, which could include prerequisites such as an authorised pathway or practical experience.

In its policy statement on the assessment options, the Law Society welcomed multiple pathways to qualification as a ‘positive step’ for opening up the profession. But it made it clear that the third option would be ‘absolutely unthinkable’ without the prerequisites of a level 6 qualification and a period of work-based learning.

While US attorneys qualify immediately on graduating from law school, John Wotton, chair of the society’s education and training committee, says: ‘We see a substantial period of work-based training prior to qualification and supervised practice post-qualification as essential.’

Brannan stresses it is very early days but reflects: ‘If we are thinking of the third option, we would need to have a model we can test to see how it would work, and what the cost issues would be; and whether it would produce consistency and test competencies appropriately.’

The next question, she says, would be whether there should be prerequisites such as a degree – ‘but we don’t require legal executives to have a degree and the solicitors’ profession has never been graduate-only’ – or a practical element.

She says a pilot would use volunteers, such as a group of law students or trainees to make sure the assessments were at the right level. ‘But that is a fair bit down the line,’ Brannan stresses. ‘At the moment we are just testing whether it could be a workable option that could be ready for 2018/19.’

The authority has been working with the Department for Business, Innovation & Skills and a group of employers from the legal sector devising an assessment for apprentice solicitors to qualify at the end of their six-year apprenticeships. It hopes this will receive government approval this summer.

The first apprenticeship assessment will not be available before 2018. But could it or the Qualified Lawyers Transfer Scheme be a prototype for a common centralised assessment?

‘It is still open whether we would keep different assessments for different pathways to qualification,’ says Brannan. ‘But if we were to go for a common professional assessment, the logic is to merge everything into one. Having one assessment gives us the advantage that everyone demonstrates they have met the required standards regardless of how they got there.’

Max Harris, chair of the Law Society’s Junior Lawyers Division, says members are not, in theory, opposed to the qualification assessment changing. But he adds: ‘The ultimate question will be – does it deliver a better way of universally assessing competence than the current route?’

More immediately, the JLD has flagged concerns about the new training regulations. Harris says there are ‘substantial’ differences. For instance, graduates no longer have to complete the LPC before beginning their training. ‘This hasn’t really been picked up on by firms yet, but if it is, the potential for change is drastic,’ he notes.

‘However, more concerning for us is the SRA’s shift away from prescribing rules which were designed to protect trainees. The JLD has received an increasing number of calls from trainees who are having disputes with their training provider, where the SRA is refusing to advise or intervene – particularly trainees who work for in-house legal departments.’

This can be ‘incredibly stressful’ for the trainees, he says. ‘Ultimately, this is harmful to the profession as some of these individuals are not being trained properly. The regulator must be there to protect not only the consumer, but also those who form part of the profession.’

Brannan defends the changes, which she says are not intended to make a ‘substantive difference’ to the training provided. ‘The main difference,’ she says, ‘is we no longer specify the terms of the training contract – we used to specify details such as how much annual leave a trainee could take, which was really none of our business.’

The regulations also remove the specific distinction between contentious and non-contentious work. But this will not make a practical difference, she says, because the professional skills standards still require trainees to develop skills which they can only do through contentious work.

But, Brannan stresses: ‘We still have a regime for monitoring trainees and I have a very important message for them – if you have any concerns come and talk to us.’

For Wotton, the SRA’s changes will ‘doubtless cause concern among the profession and those seeking to enter it, and we are looking at the best way in which to support our members through this’.

But what do training providers think of the new regulations? The SRA’s guidance says the new periods of recognised training are viewed as apprenticeships in the eyes of the law, and firms should provide trainees with a statement of the terms and conditions of employment when they start work, or shortly afterwards.

Julie Culham is human resources manager at Withersworldwide, which has 25 trainees in London, four in Hong Kong and nine in Italy.

She highlights two changes. Previously, firms or trainees wanting to terminate a training contract had to apply for the SRA’s permission. ‘This provision has been removed,’ she says, ‘but firms will still need to terminate in line with employment law on apprenticeships.’

Second, students no longer need to enrol with the SRA when they start the LPC. But she says: ‘Students should familiarise themselves with the SRA’s character and suitability test before committing to the LPC as they will need to make a declaration of their character and suitability at the point of qualification, including criminal convictions and cautions. Best practice for law firms, and what we have adopted at Withers, is to incorporate this into the employment contract and familiarise trainees with this prior to them joining or committing to the LPC.’

Staffordshire solicitors Ansons is a full-service law firm with 25 fee-earners offering commercial and private client legal services. It has two trainees, a third starting shortly and a fourth in September. It also offers a secondment facility for trainees from other firms who would not otherwise get the required contentious experience.

Managing partner Andrew Johnson says the firm has always preferred to recruit and retain trainees rather than take on paralegals. He welcomes the regulations’ less prescriptive approach which, he says, will allow firms to be more flexible in how they structure their training programmes.

The new ‘equivalent means’ provision, which allows individuals to be exempt from all or part of the academic or vocational stages if they have done other assessed or work-based learning, is ‘key’, he says: ‘It allows employers flexibility in taking on board candidates who may have more hands-on experience and are therefore able to contribute more positively from an earlier stage. The ability to have sandwich placement trainees with relevant experience will also be an advantage.’

It is this provision which will help LPC graduates unable to find a trainee position, using their paralegal experience to qualify. The SRA is currently considering 34 applications – one applicant has qualified, while others have been approved but still need to complete all the requirements of the admissions process.

‘I can see merit for a “star” paralegal a firm is keen to support,’ Culham says. ‘But the process is far from straightforward and paralegals will need to be able to demonstrate experience in three distinct areas of law which is not always that easy. There would also need to be a strong business case, as employing an individual as a newly qualified solicitor (versus a paralegal) has a big difference in cost base for firms.’

David Carr, an associate with Manchester-based legal recruiters Chadwick Nott, actively encourages candidates to consider alternative routes to qualification, including the legal executive route. He argues that paralegals with three to four years’ specialist experience are often better able to do the job than a newly qualified solicitor.

‘It will be interesting to see how employers deal with the change,’ he says. ‘The problem for law firms is that they have structures that require paralegals and solicitors. How is it going to impact them if half their paralegals now want to qualify?’

Another possibility is to qualify as a US attorney, which does not require a training contract. There is then the option of going on to take the QLTS, which costs about £3,500 plus the cost of any preparatory courses, to be admitted as a solicitor. UK law graduates with a three- or four-year common law degree are usually immediately eligible to apply to sit the New York Bar exam. Qualified lawyers who do not possess a common law degree can apply to take the California Bar exam.

Sarah Hutchinson is managing director of BARBRI International, which offers a part-time five-month Bar Review programme in London, Dublin and Edinburgh for about £5,000. She says all the students are law graduates, with the majority working in a mix of roles in the legal, financial or banking sectors. A few have taken the LPC, ‘but increasingly they are coming straight from university’.

In a nod to the old articled clerkships, global giant Mayer Brown is the first firm in the City to offer a six- year articled apprenticeship programme, run with the University of Law, which will take an 18-year-old post-A-level school-leaver through to qualification.

Earlier this year, the SRA withdrew from the voluntary code which sets recruitment responsibilities for employers and trainees, saying it was not the role of a regulator to be involved in recruitment decisions.

Wotton says the SRA had never had anyone referred to it under the code ‘nor would they have taken any action as it is a voluntary code, not a regulatory matter. This was the thinking behind their exit. It has been suggested that earlier trainee recruitment could raise barriers for those who decide later on to pursue a legal career, and also reduce social mobility by disadvantaging those who have less access to the best career advice early on.

‘However, having spoken to City of London Law Society, they say earlier recruitment is unlikely to happen as there would be no competitive advantage.’

So would Withersworldwide like to recruit sooner? ‘Not at the moment,’ Culham says. ‘We think applicants should be focusing on their studies and researching careers options at the start of their degree. We also recruit a diverse trainee population and so we actively encourage applicants post-university who may have had another career, as we value the different skills and experience they can bring to the trainee role.’

With so much at stake, Brannan says, the really important message is that all of the changes and reviews have at their core the need to assure standards more rigorously. But, with the regulator in the process of throwing up in the air all the cards that make up solicitor training, the profession will be watching closely to see how they land.

Grania Langdon-Down is a freelance journalist