Pupillages – time for a rethink? Time for abolition?

Is there a way of meeting the outgoing Chairman of the Bar’s moral challenge to consider the mismatch between the number of BPTC places and the number of pupillages which is not tainted by the profession’s understandable interest in diminishing competition post-qualification? One idea being canvassed is to have greater joint training. Under this idea would-be barristers would have to qualify as solicitors first and then, having proved themselves, would then transfer to the Bar in (perhaps) much the same way as many do now. The proposal, advocated recently by Nigel Savage and the Chair of the BSB Baroness Deech, has the merit of avoiding premature specialisation and increasing, potentially, the diversity of candidates making their way into the Bar. They’ll also come with a better understanding of a solicitors’ work, how to deal with clients and (one assumes) the nitty gritty of litigation.

There is a lot to commend the idea but there are downsides: it may be more expensive both for those that do qualify and for solicitors firms that train up would-be litigators only to lose them should they then wish to become self-employed advocates. Those may be costs worth risking, but it seems to me there is also another possible solution. That would involve replacing pupillage and the BPTC with a clinical BPTC which combines significant, supervised clinical practice (a more educationally robust form of pupillage) with the more traditional training received on the BPTC (which might be more efficiently taught than current requirements allow).

Think of the work of the Free Representation Unit integrated into a proper programme of training and assessment, with BPTC graduates required to have undergone rigorous experience in supervised and then unsupervised contexts. Educational institutions could run their own clinical components (appropriately staffed of course) or they could partner up appropriately with various Chambers and possibly other organisations (especially courts). At a time of significant unmet legal need the proposals would also ameliorate (but only in part) problems of lack of representation in courts and tribunals. Students could emerge from the course as fully-fledged practising barristers – free to work as self-employed barristers within chambers or elsewhere. Post-qualification supervision would be a concern, but I would venture to suggest that is a concern already and ways of addressing that could be found by the regulator.

An obvious problem with the proposal is cost: the course fees might rise significantly, acting as a further break on diversity. Rather than assume costs is a barrier, it would be interesting to see some investigation of how such a model might work and how much it might cost. The costs burden might be offset somewhat by the greater opportunity to practice which would be permitted thereafter. Chambers would also continue to sponsor their favoured candidates (perhaps making it cheaper for them than pupillage). The BSB would need to shift its concern from looking at the processes of education towards the outcomes that they achieve: are those students emerging from the course fit to practice as barristers? If they are, then they are admitted and can compete for work. If they are not, then they do not qualify. It is astonishing that neither Bar nor Solicitors’ profession require the demonstration of work-based competence beyond the fact of pupillage or a training contract itself. The current approach is rather like taking a driving test to get your provisional licence and being given your full licence only when your uncle has some deliveries he wants you to make. This proposal might hasten any moves in the direction of assessing fitness to practice on qualification rather than before it thereby improving the quality of the profession whilst also rendering it more accessible and open to competition.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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One Response to Pupillages – time for a rethink? Time for abolition?

  1. Richard

    I suspect, much like many facets of the legal profession, that things will be very slow to change. For me, as a former DR solicitor, and someone who did a number of mini-pupilages, I think we need to ask a different set of questions:

    1. Does having two distinct strands of the legal profession improve the outcome for the buying public/business?
    2. Would barristers be any better if they had to go through the rigours of a training contract?
    3. Does there need to be there need to be more on-the-job training than is currently the case?
    4. Would access be denied or likely be denied to all but the most able and wealthy candidates?
    5. Would it improve the chances of women in the legal profession(s)?
    6. Should DR solicitors have to conduct their own advocacy?

    I am not going to postulate answers to all these questions but for me, I have always struggled with the fact that solicitors very often don’t have the nerve or the courage of their legal convictions and leave it to Counsel to make their arguments for them. I am not suggesting that this makes for lazy law, but I certainly know where I did my own advocacy it made me extremely focused on the outcome. If you got trial specialists then I could see Counsel and solicitors being joined easily together and it would certainly make the process better for the client to see the same person conduct their case from beginning to end.

    There is no ideal model but I think there does need to be much more interaction between the two strands to make sure that in an increasingly competitive market the consumer/buyer does not lose out.

    Julian

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