The future of the legal profession and learning: a view from practice

Joy Harcup, Head of Training, Berwin Leighton Paisner

Parallel challenges face both legal practice and legal education. At a time when the government is reviewing the future of higher education and the profession are again examining the pre-admission stage of training, Joy’s opening address examined what can be done to develop the lawyers of the future.

Amongst my contemporaries at law school there are now two barristers, one in-house solicitor specialising in rail and hotels financing, an immigration lawyer, a corporate finance partner in a City firm, a sole practitioner specialising in criminal and family law, a civil litigator in a medium size provincial firm and a finance director of a FTSE 100 plc. Are there common attributes for all lawyers today, which can be developed when the increasing specialisation and differing work of the profession is taken into account? Can a common law degree and common methods of skills and work-based training cater for all? In these circumstances, has the legal profession and, particularly those involved in legal education, seen the light as regards the future of legal learning and development?

It is my intention to provide a view from practice on these points. These views are developed from my experience working as Head of Training at one of the larger law firms and from my previous experience as a qualified solicitor and a law lecturer. My views also come from chairing, last year, the Legal Education and Training Group (LETG), a networking, best practice and lobby group for those involved in legal education in law firms. I am also a former member of the Law Society Training Committee, although I must stress that any views expressed here are entirely personal.

My main thesis is that there will need to be more specialisation in legal education in the future and that, in this context, higher education institutions should concentrate on high standards of teaching, particularly in substantive law and technical research skills, but also start to develop interpersonal skills. Also I will emphasis the important role that law tutors play in introducing students to reflective practice, so that as qualified lawyers in the future they can adapt to the challenges of the 21st century.

There are three questions in particular to consider:

1. How has legal practice and learning progressed over recent years? I will concentrate on the developments in solicitors’ practice, but many of the issues and trends apply equally to the Bar and other areas of practice.
2. Is legal education currently working? I will analyse the strengths of the current legal education system and areas for improvement.
3. What are the challenges for legal practice and learning in the future – particularly in view of the government’s white paper on the future of higher education and the Law Society’s consultation paper on a new framework for the training of solicitors?

How has legal practice and learning progressed over recent years?

Firstly, what progress has been made in legal practice over recent years? There have been many changes regarding which we should congratulate ourselves. The legal profession has come a long way from the stereotypical old fashioned lawyer, who was obsessed with legal precedents and nursed a blatant contempt for his client. The solicitor of today is not only a lawyer, but also a business person juggling the demands of increasingly competitive practice. The make-up of legal practice has changed considerably in the last 30 to 40 years. The number of practising solicitors has risen by 250% since 1970. Women now make up 38% of practising solicitors and 30% of barristers. 7% of practising solicitors are from ethnic minorities, compared with 2% ten years ago. Although over 80% of law firms have four or fewer partners, in the latest statistics there are 150 solicitors firms with over 25 partners.

Solicitors today, whether in high street or large city firms, must provide excellent client service as well as market to new clients, manage their staff and their finances to be successful. To do so they require not only excellent legal knowledge and legal skills, but also good interpersonal and management skills. Solicitors in practice are becoming increasingly aware of the importance of learning in developing and honing these skills. That is why law firms like my own invest in an extensive internal training programme, covering topics from drafting and negotiating skills through to leadership, supervision skills and networking skills. Admittedly not all partners are completely converted to the importance of learning and personal development, and some are still driven by the goal of attaining the required number of CPD hours. However, I remain optimistic that this view is gradually changing and that the methods used in legal education at undergraduate and postgraduate level have an important part to play in this.

Those are the developments in legal practice, but how has legal training progressed over the last 40 years to cater for the changing demands of the profession? Of course the most revolutionary changes have been in the vocational training for solicitors. There has been a gradual progression over the decades from a knowledge-based to a predominately skills-based course. Vocational education moved from the old Law Society Part I and IIs, a memory-based knowledge test, in the 1960s and 1970s, to the Law Society Finals course in the 1980s designed to promote understanding through setting problem solving questions. This was replaced in the 1990s with the skills assessments on the Legal Practice Course (LPC) and Bar Vocational Course (BVC). The current question is whether, in view of the consultation paper on the new training framework for solicitors, vocational training, with its emphasis on learning outcomes, will in future concentrate more on behaviours (or competencies). Although there is more to do, we should be positive about the progress made in vocational training over recent years.

In contrast to vocational training, the core foundation topics of the qualifying law degree have changed relatively little over recent years. I recall, as a student in the early 1980s, my university being one of the first to make EU law a compulsory subject on their law degree course and to offer law with French as a joint honours degree. Nowadays EU law is, of course, a compulsory foundation course for all qualifying degrees, and modular and joint honours degrees are very popular – the number of students taking such degrees was estimated at between 3,500 and 4,000 in 2001. There have also been some gradual changes in methods of teaching, with excellent examples of learning by doing (other than just the traditional mooting and debating), such as more clinical education and pro bono and work experience being incorporated into courses. Nevertheless, there has not been a fundamental shift in undergraduate education over the last few decades compared with vocational training. This may well, of course, all be about to change with the Law Society’s review and the government’s Higher Education Bill. Firstly, however, one must consider whether the current system is working.

Is legal education working?

To decide this one needs to examine what the ultimate stakeholders of legal education want, be that the employers, students, regulators or government. As the aim of this talk is to provide a view from practice I will give you a practical example of what solicitors firms are looking for in their trainees and then analyse whether this is perceived as being delivered.

My firm recently ran courses on supervision for the solicitors in the firm who supervise trainees (around 60 solicitors). We asked the supervisors at the beginning of the course what were their top ten attributes of an ideal trainee. The top four attributes were:

1. good legal knowledge
2. good communication skills
3. hard working – willing to do both interesting and boring work
4. practical/commercial

The other attributes that were highly rated were professionalism, mature attitude, enthusiasm, being a team player, well organised and use of initiative.

So generally my firm’s trainee supervisors wanted bright trainees with a good professional and commercial attitude who were prepared to work hard. This is not just a snapshot of the views of one firm, they are consistent with a growing trend. Employers in other industries have similar views, which is important when over 50% of law graduates find employment in other sectors.

The Higher Education Funding Council (HEFC) is researching how universities can develop student employability (by which I mean better subject understanding, technical skills and interpersonal skills). The CBI has recently also called for more undergraduates to develop interpersonal skills such as communication, initiative and teambuilding skills. My personal view is that the demand for student employability is one reason why the recruitment of non-law graduates by firms is growing. Firms are attracted by their proven academic record (a graduate with a 2:1 or above in a non-law subject usually attains at least a commendation on the LPC), and their maturity at interview (you are often comparing a 19 year old with a 22 year old). Therefore employability is a key issue for recruiters.

So is legal education working in helping to produce the ideal trainee who has a good grasp of substantive law, but also has good analytical, research and other technical skills as well as interpersonal skills? The profession certainly perceives that there have been considerable improvements over the last few years in the vocational course. A side effect of the development of the City LPC is that standards have been raised generally on other LPC courses, particularly the relevance and standards of business law and the commercial electives. In a recent survey in Legal Week over 70% of respondents rated postgraduate legal education as having improved. A similar view came out of a recent Law Society study of the recruitment of solicitors in small firms. Does the same perception apply to the qualifying law degree?

What about the qualifying law degree?

If the Quality Assurance Agency’s benchmark standards for law (ie subject abilities, transferable intellectual skills and key skills) are considered, there have been some improvements. Graduates are perceived to have grown in confidence in their oral communication skills, for example their presentation and advocacy skills. Their problem solving abilities have improved and their IT skills are very impressive.

However, practitioners do have a number of issues. There are still concerns about consistency in the quality and standards of the qualifying law degree. Particularly when now 50% of students are awarded 2:1 degrees or above, there is distrust amongst practitioners as to whether degrees from different institutions are comparable. Nevertheless, there is also optimism over the proposed new system, whereby the Law Society and the Bar Council will actively monitor and assess the information concerning degree courses already in the public domain under the new quality assurance arrangements introduced by the government. Hopefully this will increase knowledge about standards and restore confidence.

Referring back to the Quality Assurance Agency’s benchmark standards, the other issue of concern to practitioners is the lack of retention of knowledge or ‘black letter’ law, particularly in the case of contract and tort. Especially after a gap year or during their second or third seat, trainees’ recollection of the substantive law covered at undergraduate level is often limited. Again this is one reason why students from the Postgraduate Diploma in Law (PGDL) or Common Professional Examination (CPE) routes are sometimes recruited in preference to law graduates. They appear initially to have a clarity of vision of basic legal structures on which they can build.

Another issue is the ability of trainees to undertake legal research; linked with this is autonomy and ability to take responsibility for their own learning. Whilst there appears to have been a significant improvement in the quality of Internet research – trainees are very adept at finding the latest esoteric case – knowledge of primary research sources is often still lacking. Also the presentation of research by some trainees is at times poor, with failure to cite their sources.

The future of the legal profession

Those are the perceived strengths and areas for improvement in the current legal education system. What needs to be done in the future by legal education to support an ever changing legal profession? It is important to start by looking at the practice of the future and the skills that will be required by future solicitors.

There is no doubt that the profession is going through a period of considerable change. There are a number of trends that have already started and that will develop further over the next 20 years. In the background also looms the Clementi Review of the regulation of legal services, and pressure from the Office of Fair Trading to open up the market and break down the profession’s perceived monopoly status.

There is already a clear trend towards an increase in specialisation, as the volume and complexity of law, created by central and local government as well as the international community, multiplies. There is also increased competition from greater globalisation and the opening up of this country’s internal legal market. In the future larger firms will have more competition from foreign law firms, and the trend of merger and strategic alliances will continue so that firms can complete more effectively globally. Smaller firms, now that the Law Society has approved provisions that allow employed lawyers to advise the public direct, are likely to face competition from other sectors such as banks, insurance companies and perhaps even supermarkets that may enter the legal advice market!

Another trend is that clients are becoming more demanding. The move towards solicitors providing greater and higher standards of service at less cost will continue. In the public funded sector in the last ten years the costs of running a legal aid practice have risen by 67%, but remuneration has only increased by 26%. In the commercial and private client sector clients also want more transparency as to costs and value for money. Another issue is the delivery of basic legal advice and services via IT. Some commentators are of the view that lawyers will become legal information engineers, providing legal information via computers, and that only a few select lawyers will provide specialist legal advice on complex matters. This is a too drastic analysis. Clients will still require the influencing, analytical and creative skills of human lawyers. Empathy and our use of language are the traits that distinguish us as humans from animals, or indeed computers. These skills will still be in demand from clients in the 21st century and will become even more important. On the other hand, less legal work will be available for solicitors because of the availability of online legal services for basic transactions.

The other area that will continue to grow in importance in coming years is diversity. The proportion of ethnic minorities and women within the profession is increasing. Currently 16% of new solicitors are from ethnic minorities (compared with 9% a decade ago) and 55% of new solicitors are women (compared with 27% ten years ago). Over the next ten years women are likely to become the majority of the profession.

These are the future challenges for the profession. Many of them will sound familiar. They are not unique and are similar to the issues found in other industries, including higher education. Higher education is also facing the challenges of increased competition from other institutions, the problems of funding – how to deliver a high standard education for less cost, how to keep abreast of increasing volumes of legal knowhow, the development of e-learning and how to support the diverse student population.

There is no doubt that the profession, like higher education, will have to adapt to these changes. The risks are too high if we do not. As the Law Society President, Peter Williamson, said at the Law Society Conference 2003: “If this profession does not adapt itself and fall into line with what the consumer of the 21st century wants from legal services…(be it litigation, conveyancing, wills or whatever) it will be done some other way. We have therefore to adapt, and it is no good standing and saying that we have traditions, and the way we have always done it is best. That is a recipe for disaster for this profession”. Certainly the profession can adapt, as it has done in the past, but how should this be done? What will be the skills required of specialised, competitive, diverse 21st century lawyers which legal education needs to start to develop?

He, or more likely she, will need to have high technical ability. Lawyers will need to be specialist researchers so that they can firstly analyse and synthesise the plethora of legal knowhow, and secondly distinguish themselves from non-lawyers and online legal services providers all delivering legal advice. They must be flexible and innovative to come up with creative and practical solutions, to again set themselves apart from their competitors. The new breed of 21st century lawyers will require excellent risk and project management skills and need to be extremely efficient to cater for increasingly demanding clients. They will need to scope and cost transactions properly as the method of charging by time disappears and more varied fee charging methods, such as conditional and fixed fees, become the norm in all areas of legal practice.

The future of legal education

The foundations for development of these skills can be laid at the undergraduate stage. Some of the provisions in the white paper on the future of higher education and the Law Society’s consultation on the new training framework for solicitors can help this process.

There are several proposals in the white paper that are to be welcomed. The provisions to produce better information on the quality and standards of degrees, as well as the strengthening of the external examination system, will help to restore employers’ faith in the standard of the qualifying law degree, which as we have seen above is currently an issue for employers. It will also help students to make more informed choices. The proposed shift in emphasis to improve and reward excellent teaching will also help this process, and the results will directly benefit employers and students. The abolition of upfront fees for all students and the deferral of payment until after graduation is a practical way of helping students to manage their debt better. However, like many others I still have severe concerns about the amount of student indebtedness, estimated in total at £40,000 for those becoming solicitors and barristers currently, and due to rise if top-up fees are introduced. This in particular deters students from specialising in lower paid publicly funded work, where there is already a shortage of solicitors, morale is very low and recruitment difficult

In this climate new ways of structuring legal education need to be explored. The Law Society’s proposals for a new training framework to the point of admission, to allow flexibility and reduce costs, has helped to stimulate this debate. The proposals that pre-admission training should be based on learning outcomes make sense, ie concentrating on what students and trainees know, understand and are able to do by the point of admission. This reflects the trend towards assessing results and competency/behaviour, in higher education and in the workplace generally. The proposed use of learning logs by trainees setting out why and how these outcomes are to be achieved is also to be commended, and is consistent with the use of personal development plans in higher education generally.

More controversy centres on the proposed flexibility in the various pathways to admission. The Law Society has stated that all pathways must include an honours degree or equivalent, clear assessment strategies and a period of work-based learning. If the proposals do go ahead it is clearly the Society’s intention that the market should dictate the structure of the specific pathways to qualification. I suspect that there is a divide here between the perceived needs and views of the larger firms on the one hand and the smaller firms on the other. The larger firms and City practices would rather concentrate resources on increasing and maintaining standards than on flexibility. Although the Law Society has said that all pathways to qualification would need to have consistent standards it is not clear, at this stage, how this will be achieved.

In contrast, for smaller firms and many students, cheaper and more flexibility of routes to qualification is more of a priority. When I sat on a bursary committee recently, which awarded LPC grants to students, I was struck by the resilience, tenacity and drive of many of these students, who intended to work in smaller firms and were managing to juggle family, work and part time study. The qualities they needed to deal with these demands would make them excellent in dealing with the pressures of practice. They would clearly benefit from more flexible pathways such as more credit being given for paralegal, clinical education or pro bono work, if the required standard of outcomes can be achieved by these means.

What are the pathways that are likely to be favoured by the market in the future? There is likely to be a slow evolution rather than a revolution. Hopefully it will be an opportunity for legal practice, academia and students to work closer together to produce a more cost efficient and learning effective system for all. First, recruiters would welcome more targeted law degrees based on the outcomes needed to become a solicitor, as it would support the trends for specialisation and employability. Second, more integration of the academic and vocational stages with the expansion of exempting degrees is likely, particularly if these could be delivered at a cheaper cost to students than currently, as has been suggested by some commentators. Integration would also make sense from a learning point of view, as it would help deepen understanding and retention, and would be a natural progression of the clinical work currently being undertaken by many universities. Lastly, more specialist training targeted at publicly funded work is needed, such as a legal aid practice course perhaps funded by the Legal Services Commission (as suggested by Trainee Solicitors Group), to encourage students to enter this area.

Those are the proposals from the government and the Law Society to change the structure of legal education. However, what can you do practically in the way that you design and deliver your courses to help prepare the lawyers of the future? I would make two suggestions here.

Firstly, you can increase the use of e-learning to help in particular with the retention of knowledge and the application of law. The retention particularly of substantive law can be achieved by the constant and conscious repetition of the basic legal principles in different contexts, be that in traditional lectures or through modern learning practices such as clinical education or exercises. E-learning has an important role to play in this process. It can be used at regular intervals in the degree course to revise substantive law topics and to test understanding and the application of those topics. Another opportunity which e-learning gives is to provide tailored training for students to appeal to different learning styles and to help retention. Teaching sessions are generally structured so as to try and appeal to as many different styles as possible at once. Separate e-learning products could be produced to appeal to different styles – to in a sense provide more cost effective individual coaching for students.

The second area you should continue to work on is the increased use of reflective learning practices, for example reflective logs, self and peer assessment and action plans. This will help to improve students’ performance in three areas. First, they can be used to improve technical legal skills by encouraging students to analyse what they could have done better and what they will do differently. Second, they can help undergraduates develop their interpersonal skills, which are important for employability whichever career path the student ultimately takes. Third, reflective practice and particularly the use of personal development plans will also help to develop independent lifelong learners who take responsibility for their own learning and as a result can respond to the changes in competitive practice in the 21st century.

You are very much ahead of practice in this respect. Training departments within law firms are just starting to introduce such practices into their appraisal and review systems for solicitors. The Law Society is thinking of introducing the learning log approach in place of CPD hours post qualification. You therefore have an important contribution to make in producing graduates who are familiar and comfortable with reflective practice and will use it automatically after they qualify.

Summary

In summary, we have considered how legal practice and education has progressed, what is working at the moment and the challenges for the future. The big question is: have we seen the light as concerns legal education? Yes, conferences like the one today show that we have. It is a time of change and it will bring new opportunities. As part of this, you play a crucial role as you prepare the future profession in the formative stages of their training. The attitudes and way of working that you instil within students will help them in the rest of their career. Your role is threefold:

1. to concentrate on excellent teaching
2. to continue to be open minded and innovative in developing varied learning practices to improve legal knowledge and legal and interpersonal skills. Much of this you are already doing, as can be seen from the workshops at the conference today.
3. to produce undergraduates and graduates – the future partners in law firms – who are reflective practitioners and will learn through out their careers.

I am sure that this will be achieved. As a result I look forward, within the next five years, to seeing much more rounded graduates employed by firms. Also, within the next ten years, I look forward to discussing with senior partners, not their CPD hours, but how they have learnt and developed during the year and what their action plan for the future is.

References

• Cole B (2003) Trends in the solicitors’ profession: annual statistical report 2002 London: Law Society
• Department for Education and Skills (2003) The future of higher education (white paper) London: DfES
• Department for Education and Skills (2003) The future of higher education: commentary on comments received on the higher education white paper and the paper on widening participation London: DfES
• Law Society (2003) Second consultation on a new training framework for solicitors London: Law Society
• Quality Assurance Agency (2000) Benchmark standards for law Gloucester: QAA
• Williams T and Goriely T (2003) Recruitment and retention of solicitors in small firms (Research Study 42) London: Law Society

Last Modified: 4 June 2010