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Training solicitors and teaching law

18 September 06

Professor Norrie replies to the criticisms of LLB teaching in the July issue; Brian Allingham proposes an alternative route to qualification

by Kenneth Norrie, Brian Allingham

The position of court jester is an honourable one, and for many years now Professor Alistair Bonnington has exercised its privileges to the full. The jester has the liberty to ask the kind of awkward questions that other, more serious, players feel unable to (or dare not for fear of the answer). Ninety percent of the jester’s comments may be dismissed with an indulgent smile; the crux lies in that dangerous 10% where, one fears, he (for the role is invariably male) might have struck a raw nerve.

Bonnington’s complaint

Mr Bonnington’s conclusion, expressed at the outset, is that “the fundamental problem which exists for the profession is that the law schools’ aims for the LLB degree do not match the needs of the modern legal profession in Scotland”. I probably agree with that conclusion, but not how he reaches it, nor his solution. He makes a number of assertions, some of which are accurate.

(1) The world of lawyering has become harder, while law schools have become softer: it is, indeed, a “soft option”. I accept that the practice of law is harder now than it ever was, though this is almost certainly due to quantity of new law rather than increased complexity: I am not convinced that legal practice is intellectually more challenging than it used to be. But I reject Bonnington’s counter-point that the study of law at university has become a “soft option”. His only proffered evidence is that more and more graduates leave university with a 2:1 honours degree, yet this probably reflects the fact that, with law’s ever-increasing popularity, entrance requirements climb ever higher. He criticises open access to honours, but it has been my experience that mediocre students (who 20 years ago would not have been allowed into an honours programme) rise to the challenge and raise their games (or perhaps simply work harder), and I see no acceptable basis for refusing them the chance to do so. That they choose to study subjects not directly relevant to legal practice is far less important than the fact that they choose to study. To test their intellectual ability by reference to their usefulness to the legal profession is to miss the point of universities.

(2) Law schools are “cynically used as ‘cash cows’ by the university administration”. I should be interested to learn which university’s finances Mr Bonnington has examined to come to this conclusion. Law, he is right in saying, is relatively cheap to teach, but his assumption that this therefore makes law courses profitable is economically illiterate. Few people are willing to face the reality that the state has not paid for an adequate higher education system for some decades. Bonnington, as a visiting professor, had the luxury of ignoring the cold winds of economics; few practising solicitors and no proper academic can do so today. The problem is indeed worse for law schools since the funding law attracts from government is less than that for virtually any other discipline in higher education.

No law school in Scotland has a surplus from teaching school leavers that is accessible by the university administration: but all law schools are as wearily familiar with the cash cow assumption as solicitors are with the common belief that they all earn at least half a million a year. The reality is that, to make up the shortfall in public funding, law schools have to engage in other activities that bring in money. Most typically, they have expanded hugely the range of taught masters programmes and, particularly (but not solely) at my own university, the fee-charging routes of entry into the LLB. The part-time and graduate entry programmes at all universities that offer them have the effect of increasing access and helping the legal profession become more diverse – our interests coincide here with the profession’s, but universities have an additional interest in these programmes because of the income they provide. Without that additional funding we could not achieve our primary purpose, to provide a decent education for all our students. Far from being “cash cows”, law schools are kept afloat by these activities.

Mince off the menu

(3) “Pet subjects” are taught in the later years of the LLB which are “no doubt… intellectually valid [but] from the profession’s point of view… pure mince”. Not all comic turns are as amusing as this: Mr Bonnington includes in this description the teaching of “decisions of the higher courts, such as the European Court of Human Rights, the House of Lords, and the like”, before asserting that “practitioners appreciate that the decisions of such courts have very limited applicability to the real-life situations they encounter”. It may be that, as a mere teacher of, and writer on, professional negligence I have got it wrong all these years in telling my students and readers that a failure to keep up to date with decisions of the higher courts (which, pace Bonnington, actually develop the law) is a typical form of solicitors’ negligence, even when these decisions do not impinge on their day-to-day practice. Why else does the Law Society of Scotland insist on CPD?

(4) “In almost all cases [the mince is] taught by people who have never practised law”. I suspect that this statement, almost certainly true, reveals the heart of Mr Bonnington’s complaint. When I was a student, not too many years after Bonnington, a majority of my lecturers had been, and often still were, legal practitioners. That has not been the case for some years, and more and more law teachers are either without any practical experience (like myself) or their experience is limited to a few short years immediately after university and in areas far removed from their current expertise (ECHR, and the like). There are still many teachers with more extensive practical experience and they bring valuable skills to the classroom.

But I am comfortable with the increased professionalisation of higher education, for at least two reasons. First, lecturers are now vastly more professional as teachers than they ever were before. Being teachers first and lawyers second means that most lecturers today are actually better at their jobs (lecturing) than when I was a student. Lecturers are no longer permitted to go in front of a class without any training at all; at Strathclyde and many other universities it is a requirement that new staff join the Higher Education Institute and keep up to date with educational developments (a matter the Society rightly sees as an important element in its recently introduced LLB accreditation process). An added value to the professionalisation of higher education is the research requirements imposed on all universities, which ensure that teachers keep abreast with their subjects and work at the cutting edge – even if that means reading House of Lords judgments and ECHR decisions.

But secondly and more importantly there is an assumption of breathtaking naivety behind Bonnington’s complaint – that being a good practitioner makes one a good teacher. Bonnington calls for “retired or semi-retired practitioners, or part-time practitioners” to be drafted in to teach the professional subjects. This proposal is unworkable and not just because it ignores the research and other non-teaching requirements imposed on holders of university posts. It also ignores experience. Those who remember the early years of the Diploma, when tutor-training was seen as an unnecessary indulgence, need look no further for an explanation of that programme’s early failures.

A refugee problem

The arrogant belief that a practitioner can do my job while I (of course) cannot do his or hers may well be true in Mr Bonnington’s case – but if so it is true for very few others. Every time we at Strathclyde advertise an academic post, we receive a swathe of applications from legal practitioners seeking a career change and what they perceive as an easier life. We rather unkindly refer to such applicants as “refugees”. They are virtually never shortlisted, because they have not the least idea what a university position requires – too many of them see university life as an escape from the pressures of business, a semi-retired sort of existence with 20 weeks’ holiday a year. An understanding of modern educational practices (and the economics of higher education), sophisticated research techniques, and a high intellectual capacity are not skills essential to successful legal practice, but they are essential for a university post. The “refugees” seldom offer us such skills.

(5) The “excessive intake by the law schools” deprives too many students of the chance of becoming (practising) lawyers. Excessive according to what standard? The comment illustrates a refusal to accept the reality, mentioned above, that universities, in order to achieve their educational and intellectual goals, have to earn their keep. Raising the spectre of excessive intake is also a clumsy (but all too familiar) attempt to shift responsibility for the saturated job market from those who control the number of jobs to those who don’t. In a competitive market it is of course in the interests of those with jobs to limit the number of their competitors, but I have never understood why it should be expected that universities do the dirty work here. And reducing intake would force firms to take whoever was available rather than the best they can attract of each year’s graduates. Is this really what the profession wants? I accept that the profession is entitled to look after its own interests, but so too the profession should accept that universities have to look after theirs.

(6) Legal training in Scotland “lacks rigour”; the LLB is not “fit for our professional purpose”. Well, it depends what that purpose is. The basic flaw in Bonnington’s complaint is his belief that law is (or ought to be) a purely vocational course and that the universities and their law schools are there to service the legal profession. Mr Bonnington fails to recognise the implications of what he says. The state does not pay for vocational training: without state-funded legal education the full costs would have to be borne by the profession, and I see no evidence that the profession is willing to put its money where Bonnington’s mouth is. But more fundamentally, law is not – and never has been – a wholly vocational discipline. The aim of any university course must be to equip students with intellectual skills that will serve them in a wide variety of careers, including a legal profession that is today diverse enough to accommodate LLB graduates whose day-to-day professional activities are far removed from traditional legal practice – but which nevertheless require more generic intellectual capacity. The development of that capacity is what the LLB is for. If there is a problem with vocational legal training not meeting the needs of the profession, the solution must be sought through changes to the Diploma, the PCC and the training contract. If Bonnington’s complaint has merit here, he directs his fire at the wrong (and easier) target.

But I agree with Bonnington

Yet Mr Bonnington is right, and duty bound in his role of court jester, to raise the issue and there are numerous points in his article where I agree wholeheartedly with him.

First and foremost I agree that the interests of the universities are no longer the same as the interests of the profession. But I don’t agree that, therefore, the universities should change. The Law Society of Scotland now rightly accepts that education and training can only be effectively delivered through a partnership between the profession and the law schools, rather than through the master-servant relationship that Bonnington’s mindset envisages.

I also agree with Bonnington’s disparaging of the Society’s acceptance of academics’ certification of graduates as “fit and proper persons” to join the legal profession. I have no competence to make that judgment, yet am called upon to do so virtually weekly. (I refer to the request as the “No, Yes, Yes, No Form”, after the answers that need to be given.) But that is a flaw in the Society’s processes (one it is currently addressing) and academics cannot be blamed for answering a question the Society insists on asking them.

And I agree with his ultimate conclusion and most important point, that the aims of the LLB do not match the needs of the legal profession. But as I have tried to explain, I see this as the reality we must both work within, rather than a cause to disparage one of the two interested parties. It behoves the legal profession to understand that the law schools do not exist solely for its purposes, and to further its own interests by its own means, utilising such help as the universities are willing and able to give as part of the overall package. The mistake in the past has been to attempt to force the universities to offer what the profession wants rather than what the universities can deliver, and then assuming that little else is needed to train a solicitor.

The Law Society of Scotland has of late begun to grapple with these serious issues and is to be commended for its current open-mindedness and forward-looking approach. The process of accreditation of both LLB and Diploma has brought the Society to the realisation (i) that the weary old assumptions in Bonnington’s complaint no longer apply (if, in truth, they ever did), and (ii) that the interests of the universities and those of the legal profession are moving steadily apart. The Society’s response to that irresistible movement has not been to hark back to some Edwardian period when the sun never set, but to seek to redesign the whole system taking account of today’s realities. If Bonnington’s complaint further encourages the more traditional members of the legal profession in Scotland to accept these realities too and to work within them, he will have performed a valuable service, as jesters sometimes do.

Could the pre-Diploma training contract  be the small firm’s lifeline?

Brian Allingham puts the case for an alternative route to qualification

While the bullets whizz overhead in the debate on the academic and practical content of the LLB, it is good to remember that there is an alternative to the degree. The pre-Diploma training contract involves working with a law firm for three years (on a training contract) while studying for and then sitting the Law Society of Scotland’s exams.

There is a short mention of this on the Society’s website and Liz Campbell wrote about it in the Journal, April, 26. However, only about 30 people are currently using this route to becoming a solicitor, with between one and 15 trainees starting out each year.

Yet for those who can’t afford the time or the money to study for a degree (£33,000 at the latest count), and those who are already working for a law firm, this is an excellent option. If you can persuade a law firm to give you a three year contract, and if you have the time to study on your own for the exams, this route is perhaps the best way forward.

First, there is a three year training contract (the “pre-Diploma training contract”) during which the trainee has to sit and pass the Society’s exams. The training contract can be spent working as a paralegal and the exams are nearly all in good, practical subjects – legal system, conveyancing, evidence, criminal law, commercial law – subjects of which all lawyers should have some knowledge.

Secondly, the Diploma has to be tackled, although, as with the large majority of Diploma students, it is perfectly possible to carry on working during this period.

Finally, there is a two year traineeship after the Diploma, as with degree holders.

As I travel around the country, visiting and advising law firms, one of the most common problems facing small firms is that there is no one to succeed to the partnership. Fewer and fewer young lawyers are being tempted to the country, partly because of the enormous demand from the cities and partly because smaller firms aren’t offering sufficiently attractive incentives.

But one solution is to convert suitable paralegals into solicitors, and the training contract is ideal for this purpose.

If you already have a sound paralegal working for you, you can offer them the training contract on the same salary as at present, with the promise of support and employment through the Diploma and the final two year training period.

Of course, you will need to help them with their studying, but the incentive for them is large, and, after only six years (only?) you will have a fully fledged solicitor, vastly experienced in dealing with your clients and fully qualified to tackle their problems. And if you have to revisit your own knowledge of Scots law, is that such a bad thing?

The training contract, at six years in total, is a long haul, with few shortcuts (some of the Diploma subjects may be avoided); but, for experienced paralegals, this may be the only way into a partnership. And for law firms facing a shortage of partners in six to 10 years, this can be the escape route from the danger zone.

For the trainee, there are dangers. What happens if your firm goes out of business during your training contract? Will you be able to find another firm to take you on and complete the contract?

How will you finance the Diploma and will you be able to work part-time for your firm while you attend Diploma classes?

What will your firm pay you for the post-Diploma training period? Will they turn into Scrooge and offer you only the payments recommended by the Society?

Will you be able to pass the exams? I remember, while studying for my certificate in e-business a few years ago, having to sit an exam and, having sat none since 1972 (and I was never any good at passing exams) I found the experience terrifying. I wrote at high speed from the moment the exam started until it finished. My hand was shaking with the effort and I had no idea whether what I was writing was the good stuff or utter nonsense. I could hardly stand afterwards: and I’m good at standing.

For the employer, there is a commitment to six years’ employment, although for most of that time the trainee should be able to work as normal, and should be improving skills and gaining valuable knowledge and experience.

But, facing a future with fewer and fewer potential partners for small, rural practices, and perhaps no one to buy you out when you decide to hand in your dinner pail and join the ranks of the unemployed, the training contract can provide a lifeline and a new supply of experienced, battle-hardened solicitors.

If the universities are not willing to make the LLB degree a more useful tool for creating solicitors than it is at present, the Society should look again at the pre-Diploma training contract and find ways of making it more attractive to a new breed of practitioners.

For example, the Diploma section could be dropped completely, as the trainees will already have spent three years working in a law office.

Similarly the two year traineeship could be reduced for much the same reason, and the three year pre-Diploma training period could also be reduced to two years, particularly for experienced paralegals.

In fact, a simple, single three year traineeship, with suitable exam passes, should be more than sufficient to qualify an experienced paralegal (or anyone else for that matter) as a solicitor. The experience and the practical knowledge are already there and the exams will provide the background knowledge which currently makes the difference between solicitors and most paralegals.

The six year course may seem too much for many people in our fast-forward society, and there are countless experienced paralegals who may be lost to the profession, but who might be attracted by a three year course.

Brian D Allingham is a solicitor now working as a management consultant to small and medium-sized law firms throughout Scotland.  e: brian.allingham@virgin.net