LETR Discussion Doc #4: is the end in sight, the end?

The LETR has produced a fourth discussion document. It’s not long now until the final report is due and we are promised a number of research papers between then (December) and now. The document is careful not to prejudge most of the key questions but there are, what might be, some subtle steers. For me, some of the key areas are as follows.

There is a fairly firm indication of concern about a lack of one, solid framework for paralegal qualifications, “The paper questions the complexity, consistency and coherence of the system that is emerging, and notes the potential influence of Skills for Justice in co-ordinating National Occupational Standards for apprentices and potentially other paralegal.”  CILEX is praised for its work in the area and there may be an opportunity for Skills for Justice to take a stronger role.

“It considers the growing role of entities and entity regulation in assuring standards, and suggests that moves to a greater focus on risk-based and outcomes-focused regulation require what is called an ‘active competence orientation’ to training by both entities and individuals.” This could mean a number of things. My interpretation is that it is likely to suggest a greater reponsibility is placed on the employer, where regulated, to develop and evidence processes for assuring themselves and regulators that their staff are both competent and properly trained. Thus CPD, for instance, might be subsumed within a more general quality assurance framework. The job of regulators is then to set the standards to be expected and to test whether the system works (this might involve testing systems and testing individual’s competences from time to time, as part of reaccreditation, for example). So the report suggests: “ensuring entities have appropriate work allocation and supervision policies and systems, backed-up by effective training programmes and good record-keeping seems a better way of demonstrating pro-active management of the risks.”

There are the beginnings of an attempt to sketch out a somewhat slimmed down core curriculum for the qualifying law degree and GDL. Perhaps covering (only) the following:

“The relationship between citizen and state (principles of constitutional and administrative law, criminal justice, and human rights).

“Obligations arising between citizens and how legal disputes may be resolved (principles of contract and tort, rights over property – personality and realty, remedies and restitution, the civil courts and alternative dispute resolution)?

“The role of law in the regulation of economic activity (formation and types of businessentities, consumer protection, regulating markets and competition)?

“The role of law in regulating international relations (key institutions of private and public international law)?

“The relationship between law and the moral order (eg, the values of law and lawyering, justice and rights, the ‘moral foundations’ of criminal and civil law)?”

The latter opens up a somewhat vexed debate about what including more ethics in the undergraduate legal curriculum should cover. There is a school of thought which suggests all that is needed, if indeed anything is needed, is for students to have a clearer idea of the moral/philosophical underpinnings of law on graduation and that there is not a need for undergraduates to have an understanding of the role and ethics of professional lawyers. It’s not a view that makes much sense to me, but it is one which would be more easily accommodated in most law schools, where various legal systems and jurisprudence courses could ordinarily be dusted down to meet the ‘moral order’ needs (indeed they probably meet them already).

My own view, unsurprisingly, is that an undergraduate’s legal education is significantly richer if it includes some understanding of professional legal ethics, and I note the LETR’s citation of Andy Boon’s definition (I think and hope cited approvingly):

“the aim of the ethics curriculum at undergraduate level should be to establish clearly in students’ minds the institutions of the legal system, the values that underpin them and the professions’ roles in relation to them. This will provide the foundation for students’ understanding of, and commitment to, their own professional responsibility.” (Our emphasis).”

If the professions really do need students to enter the LPC with a firmer grasp of ethics for practice then it seems to me this is the obvious place to start rather than ensuring a stronger grasp of legal philosophy for all, as welcome as that would be. I remain to be convinced that lessons learned about ethics in law school will have a transformative effect on professional ethics, but I also suspect that some of the professions’ travails in recent scandals and their rather unthinking adherence to some rather quaint ideas about ways of doing business might have been challenged from within the professions sooner if law students turned practitioners with a richer understanding of practice. If academics and practitioners were more engaged with each other on understanding legal practice, the professions would, I believe, be a little more imaginative and resilient as a result.

Finally, the point which has garnered much attention is the claim that legal education and training is not fit for purpose. There are a couple of observations here. One is that it is the system as a whole which is singled out for criticism. It is harder to see which individual parts are particularly thought to be failing by the review team though the criticism of the dead hand of the GDL is notable. I suspect that’s a criticism that will not be pursued; the course is almost certainly too popular with law firms to be abolished. It acts also as a bit of a firewall against greater intervention in the law degree. If the profession wants more in the law degree the GDL has to be crammed beyond breaking point. It seems to me that it is the shift toward active management of competence on admission which is the critical thing here. That is the biggest change signalled by the paper; it’s a welcome one but it will be resisted by firms keener to see employees as productive fee earners than subjects of managerial nurturing and responsibility. Too many firms still like to think the best training is offered in the school of hard knocks.

The final point about the fitness problem is that the researchers are most confident that competence problems exists around, “client relations/ relationship management, commercial skills/awareness, project management and more general team and individual management skills.” This view is partly an artefact of where the evidence comes from. Neither the profession nor its regulators has historically been much interested in researching its own competence, and so most data in quality comes from clients who are easy to access but provide views on the kinds of things they know about. Interestingly, these deficit areas engage skills which can begin to be developed at any point in the educational process and there will be a healthy debate to be had about the role of undergraduate education here but I’d expect that debate to suggest they may be most appropriately developed through work-based learning. An outcome of the LETR may be that firms have to become more sophisticated trainers, purchasers of training and assessors of their own staff’s competence. They may also be looking to collaborate much more actively with educational providers. The review’s real suggestions for change may focus on the end of the process rather than the beginning.

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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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