New lawyers - new horizons? What kind of lawyers do we need?

Roger Smith, Justice

Roger’s keynote address at Vocational Teachers Forum on 6 January 2006 provided a tentative look into the future, speculating on how the market for legal services might develop and the choices in the way we train lawyers.

There is one certainty about predictions of the future: they will be wrong.

A report on the future of the legal profession by the young lawyers’ conference of the Canadian Bar Association (2000) was decorated with embarassing prophecies – from Decca Records’ refusal of a contract to The Beatles in 1962 on the basis that “groups of guitars are on the way out” to the 1949 verdict in Popular Mechanics that “Computers in the future may weigh no more than 1.5 tons”. Yet, those concerned with the legal profession in general – and legal education in particular – have little option but to keep on trying to identify where we are going and what choices we might have. I don’t want exactly to predict the future, but I do want to use this speech to discuss what it might hold with particular relevance to the future of vocational training.

The paucity of forward analysis in the UK is surprising. There is a literature about the effect of technological change, in which Richard Susskind has played a prominent role in arguing that it will release a latent legal market. The legal professions in other countries have, however, been more willing to look the future in the eye. The American Bar Association set up an open examination of their future. So too did the young Canadian lawyers. South Australian lawyers have recently had a conference on the subject. Yet, a Google search on ‘future of the legal profession’ turned up only one UK paper – creditably, on UKCLE’s own site (see The future of the legal profession and learning, opening address at LILI 2004). But everyone must acknowledge the rapid period of change into which we have entered, particularly as the government finally moves to trump self regulation and stands ready to implement a major raft of reforms from which there will be no turning back – third party ownership of law firms, multi-disciplinary partnerships and the imposition of oversight regulation.

Some of those that you teach this year could still to be in practice in the year 2050. The majority probably hope still to be in practice in 14 years time the date examined in the futurist 2020 visions fashionable in other jurisdictions. What vocational training do these people need?

The most effective answer may be quite prosaic. The absolute priority of your students will be to get through tomorrow and to survive another day. The rest of this conference will consider how you can help them to attain this objective. Indeed, given the uncertainties over the future, such a short term manageable goal may be the best. Your students will develop the skills they need on, as supermarkets might put it, a ‘just in time’ basis. So, heads down and carry on.

However, let us pull back the camera and focus on the wider picture at least for the duration of this speech.

Various spirits contest the position of an appropriate image for tomorrow’s lawyers. Let us rememer a still potent one of the past: Atticus Finch in To kill a mockingbird, played by Gregory Peck in the film version, the fictional creation of all that is best in the traditional model of the lawyer who gives his all in a court battle for his client, no matter how unpopular. If with what I hope is a somewhat prosaic but still acceptable sleight of hand – we translate the fictional US Atticus into real lawyers in the UK with higher rights of audience then his image of the courtroom advocate fits about 15,000, pretty well 15 per cent of the roughly 100,000 practising lawyers – 3,000 solicitors with higher rights of audience and the 12,000 barristers. This remains a powerful group, including the whole of the Bar, if a relatively marginal number of solicitors.

We might take slightly more licence and have Atticus stand for domestic lawyers funded by legal aid. If so, we might then be looking at a rather larger numbers. For the Bar, admittedly on some rather old 1989 figures, legal aid contributed 30 per cent of its income probably rather less now that conditional fees cover personal injury – and probably somewhere like 11 per cent of all solicitors’ current income. So, we might say a quarter of the income of the Bar and a tenth of that of members of the Law Society. The figure for solictors is an estimation from a figure that, as calculated by the Law Society, fell an all time high of 15.1 per cent as late as 1995-96 (Law Society, 2001) to 13.2 per cent in 1999-2000, the last year for which figures are available. I want to return later to the future of legal aid.

However, a more modern image of the lawyer from US media would surely be Ally McBeal – or the real Faiza Saeed. You are unlikely to recognise her name, but she was identified by American Lawyer in April 2005 as the dealmaker of 2005 and, according to her firm’s Web entry, has already been designated the leading merger and acquisitions lawyer of 2006, which seems of somewhat doubtful provenance and validity since the year is one six days old. Faiza is a partner at one of New York’s pre-eminent law firms, Cravath, Swaine & Moore. She was engagingly described by American Lawyer as a “velvet hammer” in disentagling elements of a film empire. One of her partners gushed: “This deal involved lawyers, bankers, investors, artists and filmmakers…[She] spoke all their languages”.

Faiza Saeed differs in many ways from Atticus Finch. For a start, she is real, a woman, a non-Wasp. She is a totally different lawyer. She brought a part of Dreamworks to the New York Stock Exchange with a market capitalisation of $4.1 billion. She is a transaction lawyer – it is entirely possible that she has never been near a court. Her firm, Cravaths, was identified by an American Bar Association study on the future of the legal profession as one of the models of excellent commercial practice. Cravaths, we might note, is a limited liability partnership – its 87 partners are protected from the full rigours of the personal joint and several liability traditional for professions that Atticus would have felt in his very bones. She is the very model of a modern corporate lawyer.

If Faiza represents English solictors in large corporate firms then, with I hope a continuingly acceptable sleight of hand, she stands for the 28,000 solicitors in firms with 26 partners or more and certainly the 16,000 in firms with 81 or more. On any basis, she seems likely to represent a larger block within the combined legal profession than do higher court advocates.

Let us stop at this point. Atticus and Faiza are pretty clear about what they do. Today’ Atticus may have concerns about remuneration, but the role of courtroom advocate remains fundamentally clear. It is understood in almost all jurisdictions. Legal aid lawyers, barristers and solicitors feel unrecognised and under threat in their current forms of organisation. But would their essential identity really be threatened, even if they were employed by a public defender or the Crown Prosecution Service? I don’t think so, and they survive in such circumstances in the United States. Similarly, the role of corporate lawyers is clear, and understood by themselves and their clients, the latter being particularly well educated in understanding how their lawyers act in their interest and sharper on that point than many an external regulator.

UK corporate lawyers, of course, participate in an international legal market, their position in which will determine their success or failure at a global level. Put crudely, our lawyers sometimes have to take on Faiza and win the beauty parade. In 1999-2000, about £1bn, just under 10 per cent of the total income of all UK lawyers, was technically categorised as ‘overseas earnings’, and a larger sum will have been earned abroad but categorised as home earnings. Such pickings, of course, attract the sharks. US firms lead the pack. The American Bar Association reported in 2001 that US firms were stepping up their engagement in European markets two leading US firms that, between them, had done only nine merger and acquisition deals in 1996 had done 80 by five years later. The total value of such deals in 1999 was $1.3 trillion (American Bar Association, 2001). So, there is competition between the US and the UK in which we could lose out. Presumably, our lawyers are also vulnerable to the general fate of London as a world financial centre. However there is little sign of any failure as yet, and simply by being in large firms, let alone their commercial work, partners statistically quadruple their likely average earnings to an average in 2004 of £290,000 in firms with 81 and more partners, as compared with an average for all firms of £70,000 (Law Society, 2004).

So, the role of the City lawyer and the court advocate will survive, guaranteed ultimately by the needs of global capital on the one hand and the state on the other. That does not necessarily guarantee practice in its current form. City lawyers could opt out of the Law Society and develop, for example, the City of London Law Society as their representative body an existing trend which an article in The Times on Wednesday already noted (Gibb, 2006). It would not be that large a move for the City to develop its own law society as its regulator, if its lawyers got fed up with their disproportionate proportion funding of the Law Society’s £125m budget and the disproportionately low use they or their clients make of its services. The Times article proceeded to speculate that, under such pressures, the Law Society might break up. The development of the City LPC (a variant of the Legal Practice Course, the vocational course for solicitors in England and Wales, designed specifically for firms in the City) showed the City firms as willing to begin to exercise their collective muscle. If they pulled out of the Law Society or even required major discounts on membership, it is not clear that small firms with lower profitability and greater complaints could easily meet the difference. The Law Society of England and Wales was forged in the 19th century from the amalgamation of various regional societies. In the 21st, one could imagine that there could be a return to a modification of the earlier model, with a number of regulators determined more by function than geography.

The future of the Bar is also threatened. However, three factors at the hands of government could make major changes – a relative reduction in legal aid payments, changes in the way that barristers might be hired and the removal of self government. The 12,000 barristers in private practice are supplemented by a further 3,000 employed in enterprises of one kind or another. The Crown Prosecution Service is moving to shift work to its own employed lawyers, and the number of employed lawyers is likely to increase. The Lord Chancellor is seeking to reduce the £1.2bn a year spent on criminal legal aid, and the half of that sum spent in the Crown Court in particular. The Carter review of legal aid procurement is surely likely to recommend some form of bulk purchase from barristers chambers to replace a lot of use of individual barristers. We already know that criminal practice at the Bar is highly competitive, particularly in the early years, and that there is considerable shakeout at every material stage – pupillage, tenancy and within the first three or four years, particularly in criminal practice where there is just not enough work to go round. We also know that Carter is likely to reduce still further the earnings of senior criminal silks, thereby furthering a process that has already occurred for solicitors the greater segmentation of a relatively poorer paid public funded criminal bar. For all that, it seems to me unlikely that the Bar will fold, only reduce in numbers. There is too much of a common culture, identity, tradition and role. Just go to lunch in the Middle Temple one day if you are uncertain of its survival.

So the English equivalents of Atticus and Faiza will essentially survive. The problem is about the rest. The overall legal market looks likely to be worth around £15bn annually. This is on the basis of extrapolating from solicitors gross turnover in 1999-2000, the last year published, of £10.5bn and on the assumption that the Bar continues to have a turnover of a tenth of that of solicitors, which was the case in 1989. We know that legal aid brings in roughly £2bn. We know that overseas legal earnings were £1bn in 1999-2000 and must now be £1.5bn. So, that leaves £13.5bn on which we have no definite information.

There are one or two areas of work where income might rise for example, what is sometimes called ‘elder law’ the law particularly applicable to older people as we live longer with more wealth – but few obvious ones, and a number of areas where it might fall. Indeed, it is government’s specific objective to reduce the cost of legal services. That is why it is determined to see through the Clementi reforms. We know that the work in large and small firms tends to be very different. Sole practitioners, on average, reported that 40 per cent of their income came from residential conveyancing, whereas for firms with 41 or more partners about the same percentage of income came from business and commercial affairs. It is difficult to see sole practitioners and small practices retaining residential conveyancing and probate at present levels under the mulitiple whammy of technological change, larger and potentially national networks or organisation, the advantages of new sources of capital and the increasing likelihood of higher regulatory charges for professional indemnity, insurance, regulation and complaints handling. We know also that an increasing percentage of solicitors with practising certificates are employed in commercial organisations and government up from 12 per cent in 1988 to 22 per cent in 2004 (see Law Society, 1999). The government intends this to rise through encouraging such innovations as ‘Tesco law’ or, more likely, AA legal services. Franchised or employed lawyers will increasingly be linked in some form of employment relationship with large corporate non-legal organisations. This may cut costs to the client. It is unlikely to increase the number of jobs for practising lawyers. Indeed, part of the point may be to shake out numbers.

Underneath the existing legal labour market, the young are stirring – they want their share. The pressure for entry is substantial. UK universities graduate about 10,000 law students a year half of them with an upper second. Around 8,000 students, including these law graduates and a fresh cohort of non-law graduates off the Common Professional Examination/Postgraduate Diploma in Law (the conversion courses for non-law graduates), enrol on the Legal Practice Course (the LPC, the vocational course for intending solicitiors) and about 1,500 on the Bar Vocational Course (the BVC, the vocational course for intending barristers). The professions still effectively control entry either through training contacts, of which there are around 6,000, and pupillage places, of which there are around 700. The response of the two professional bodies differs. The Bar is seeking to protect its brand. By 2008, it intends to introduce its provisions on ‘deferred call’, requiring pupillage before conferring of the title. Thus, it is actually seeking to increase its control more than at present, and somewhat against the role that it has hitherto played of training lawyers for Commonwealth jurisdictions. The wisdom of this at a time of greater government regulation is to be seen. The Law Society, meanwhile, has speculated in the second version of its Training Framework Review (consultation process on the training process for solicitors) that entry might be loosened through more diverse ways of qualification. It appears to be going the other way liberalising entry. The new factor in the equation becomes the government and its proposal for a Legal Services Board to become a super-regulator. We just don’t know what difference that will make. It could, at least in time, significantly undermine the concept of self regulation.

So what are the implications for these sorts of changes in relation to training?

Common or diverse training?

First, we currently have two routes into the legal profession characterised by the BVC plus pupillage and the LPC plus training contract. There is bound to be further consideration of whether there should be a more common route of training. Alternatively, the current two tier approach might continue. In any event, there is likely to be much more transfer between different branches. Indeed, to maintain its criminal work, the Bar might well wish to promote the transfer of solicitors with some years of experience, so that it can maintain a fresh stream of entrants at a time when there may well be a dearth of work for newly qualified barristers.The problem about a common training is that today’s Atticuses and Faizas need a high level of different knowledge and, to a large extent skills. It is not clear that training would be improved by seeking to combine the LPC and the BVC, even if this would appear logical. Indeed, the future of a common solictor’s training needs some thought if it is to be delivered through an identifiably common route. If there is to be separate training then there need to be training mechanisms facilitating transfer.

Regulating for diversity

Second, there are issues about diversity. By and large, the legal profession has expanded partly through increasing legal aid expenditure to accommodate the expansion of tertiary education in the 1960s and 1970s, thus being well on its way to absorbing the women who disproproportionately benefited. For all the problems of glass ceilings, we can surely see the end of the process of equal entry for women. It cannot adapt so painlessly to the current wave of expansion, which impact disproportionately on the black and minority ethnic (BME) entrants coming through the expansion of universities in the 1990s. What is more, as BME solicitors and barristers point out, legal aid cuts bear disproportionately on them, because they are disproportionately in smaller and less well funded practices. Since greater size is probably unavoidable, we need to develop ways of requiring larger practising units to meet diversity targets as a requirement of funding. Otherwise, graduates from the new universities will be repulsed from the professions some of them having spent a considerable amount of money that they cannot afford on partial training. This issue of diversity needs to be expressly addressed in any new forms of organisation, which might, even if properly regulated since they are likely to be larger and more corporate have positives for BME entrants.

The importance of ethics

Third, the striking element of similarity between my two US architypes was ethics. Atticus stood by his professional ethics. But so, interestingly enough, must Faiza. She would need to have been very clear about the best interests of her client in the whirl of negotiation into which she threw herself. Ethics emerge at the core of the work of both types of practice and are, indeed, a distinguishing characteristic of a lawyer. This raises the question of whether vocational training raises ethical issues sufficiently. And, indeed, whether professional bodies and providers should be giving greater emphasis to the ethics of practice. Further, if government is to be more involved in regulation of the legal profession, then how are values of independence traditionally heralded as the core characteristic of an independent profession to be maintained? One way should be through a heavy concentration on a common element of training about the value of independence and the true meaning and complexity of acting in the best interests of one’s client.

There is an alternative perspective in which it is argued, contrary to the above, that for the vast bulk of those carrying out legal work ethics are really no more serious than the law of agency that applies to many advisers of one kind or another. If that is so, then ethics is not a distinctive attribute of at least a vast body of existing lawyers, particularly those concerned with transactions, and there is no reason why the professional structure should not be dismantled in its entirety. This takes us into consideration of the old chestnut of whether law remains a profession. Debate on this issue has bubbled away since before the Benson Royal Commission in 1979. It identified six attributes to a profession, key among them a “measure of self regulation so that it may require its members to observe higher standards than could be successfully imposed from without”. I think it is reasonable to say that the government intervention has been tripped because of the manifest failure of the Law Society in the late 1990s, captured as it was by articulate representatives of smaller pratices, to take this obligation sufficiently seriously. It needs to decide its current position. One eminent observer of the legal professsion wrote that the key problem of the legal professsion for the 1990s as being the issue of whether it had sufficient ‘professional coherence’ (Glasser, 1990). That remains the issue for the 21st century. If not, or if parts of it do not, then the professional structure ought to be dismantled.

Accommodating specialisation

Fourth, the vocational stage of training necessily exposes the diverse vocations that lawyers may actually follow particularly solicitors. A corporate LPC has emerged, followed by a legal aid LPC. There may be other groupings to come in particular around personal transactional work. The original narrow goal of the Law Society Training Framework Review was to provide a common set of broad standards that would allow greater differentiation of subject and also allow greater diversity of teaching methods that might allow the cost to be contained. It was an approach that was always vulnerable to objection that it allowed specialisation to such an extent that the transferability of skills and knowledge becomes less possible to justify. In that case, the variation of training may be more appropriately meshed with different qualifications pressure for which would be assisted if City firms did turn decisively against the Law Society. Alternatively, the Law Society might think of recognising the problem of transferability by sub-qualifications that required, for example, a conveyancer to re-qualify in part as a family lawyer. The proposals of the Training Framework Review for different qualification routes raise this issue but do not really address it.

Repackaging the training process

Finally, there remains the underlying clash between expanding entry into higher education and a potentially decreasing legal profession. How might those in the vocational training market address that imbalance? Your institutions want to train more and more people for what might well be fewer and fewer jobs as practising lawyers. This is, of course, not just an issue for the law – it may be a general issue for higher education in a number of sectors. There are some contradictory trends here. On the one hand, student debt is soaring. On the other, more and more people are seeking to increase their marketability by taking a Masters course or other second degree. It might be that we could see some repackaging of the LPC and training contract period as a legally oriented training for business rather than the law. The Bar, in particular, has a long history of providing a finishing school for those who move on into other careers take Clive Anderson or Tony Blair as an example. Vocational training could specifically be designed to provide a general base for a range of careers, among which being a practising lawyer would be just one. This would certainly be good news for vocational teachers.

Conclusion

So, who knows what will happen? But these five issues common or diverse training, regulating for diversity, the importance of ethics, accomodating properly to specialisation and seeking to repackage the training process seem likely to retain their importance, whatever happens. All those involved in the legal profession and particularly those involved in its future at a policy or educational level need to keep on seeking to envision the future. Of course, we will all get in wrong. Hopefully, by continuing to debate the future, we will, however, get it increasingly less wrong.

But, as a final reminder about predictions of the past, let me return to one of cautionary quotes assembled by the young Canadian lawyers. One comes from the US Secretary of the Navy speaking on 4th December 1941 – “‘No matter what happens, the US Navy is not going to be caught napping”. The attack on Pearl Harbour began at 07:55 on the 7th.

References

• American Bar Association (2001) Deliberations of the Committee on Research about the Future of the Legal Profession on the current status of the legal profession (working notes) Chicago: ABA
• Canadian Bar Association (2000) The future of the legal profession: the challenge of change (Young Lawyers Conference Report) Ontario: CBA
• Gibb F (2006) ‘Law Society could vanish amid revamp’ The Times, 4 January
• Glasser C (1990) ‘The legal profession in the 1990s: images of change’ Legal Studies 10(1): 1-11
• Law Society (2004) Private practice solicitors salaries (Fact sheet: salary survey 2004) London: Law Society
• Law Society (2001) Annual Statistical Return London: Law Society (table 5.8)
• Law Society (1999) The changing legal market place in England and Wales London: Law Society

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Biography of Roger Smith

Roger has been Director of Justice since November 2001. Prior to that he was Director of Legal Education and Training at the Law Society of England and Wales. He was also Director of the Legal Action Group (1986-98), where he was a solicitor from 1980 to 1986, Director of West Hampstead Law Centre (1975-79), and Solicitor, Camden Law Centre (1973-75). Roger began his legal career as an articled clerk at Allen & Overy in 1971.

Roger is a member of the public interest advisory panel of the Legal Services Commission, and Honorary Professor at the University of Kent.

His publications include Children and the courts (1980), and Shaping the future: new directions in legal services (Legal Action Group, 1995).

Last Modified: 4 June 2010