Two papers published this week on legal education underline for me a number of unresolved tensions in professional regulation. The papers come from the Legal Services Board and the College of Law’s Legal Services Institute, the latter authored by Stephen Mayson and John Randall. The LSBs paper emphasises the need for the Legal Education and Training Review to focus on the regulatory case for intervening in education and training. In broad terms, any regulation of education requires a reasonably strong regulatory justification. This is one reason why there is a growing consensus (not shared I suspect by the Bar) that there should be less regulation of law degrees not more.
Mayson and Randall take a similar approach. They make the now familiar argument that an (improved) LPC should be the gateway to qualification as a solicitor but that there should be post qualification requirements (more courses and work-based learning) for those practising in reserved areas. I suspect there is quite a weight of opinion behind the idea that there needs to be a much stronger focus on ensuring competence in reserved areas of work and the need to concentrate on post-qualification activity in particular. What I am left wondering though is how the proposal to have a qualification for a solicitor which does not entitle you to do anything (save call yourself a solicitor, or a non-practising solicitor, a la Barristers) contributes to the regulatory framework? Put another way, what’s the point of a title which does not entitle you to do anything? It may open a rather large hole under the concept of solicitor.
Although cynics will point to the College of Law’s (and other LPC providers like Cardiff’s) interest in being able to offer the LPC on the basis that it enables them to ‘qualify’ as a solicitor, there are some more genuine benefits in greater flexibility. The two year training contract is a relic of the apprenticeship system which deserves a hard look. Equally, allowing individuals to take a title which may confuse them and any clients whom they service as ‘non-practising’ solicitors, is not an approach which simplifies or strengthens the system from the consumer pespective. A possible balancing of these concerns is to allow LPC graduates who secure employment with an appropriately regulated organisation as a solicitor to have the title of solicitor as long as they remain employed in that way. That organisation would be regulated in the normal way by the SRA and would be expected to provide proper training, development and supervision consistent with the individuals needs and the standards of a solicitor. The nature of that training and development might be both more flexible than a two year training contract but more tailored to the specific work of that organisation and more demanding in terms of its assurance of competence. That process and development would also be lifelong not two years, although there would come a point when a solicitor’s experience was sufficient for them to be able to break out on their own (as there is now). That seems to me to be a potentially fruitful compromise which might fill in the hole opened up under the title of Solicitor by the Legal Service Institute’s proposal.
Neither that proposal nor the College’s really deals with the concerns about mismatch between LPC numbers and training contract ‘places’. Serious as that problem is, in broad terms I do not believe that is a problem which is properly the concern of the LETR. Nevertheless, I believe that if we consider greater flexibility in the training contract we also ought to consider greater flexbiblity in the LPC. Vocational and work-based learning needs to be both strengthened and more tailored to the individual contexts within which lawyers are working. My own preference is for a stronger blending of LPC and training contract stages. A sandwich or part time model with vocational training and assessment targeted more at actual work needs would ensure better training and a stronger balance between those doing the LPC and the number of training contracts. It would also provide a better distribution of the costs and risks of that training. That ‘solution’ poses practical difficulties to firms used to having trainees available work full-time as soon as they enter practice and to training institutions who would have a smaller market of would-be trainees (probably) and would have to provide a much more adaptive set of training packages. I believe however it might provide better quality training and, as it happens, go some way to ameliorate the concern about mismatch between trainee and LPC places.