Last month I took part in the UCL/LexisNexis Legal Education Debate on whether lawyers need to be scholars. I was privileged to be one of the panellists, but found myself in some hot water for suggesting that, viewed in its entirety, the current framework for the education and development of practising lawyers was not ‘fit for purpose’. Let me explain why I reached that conclusion.
We are now into a period of outcomes focused regulation. While in favour of OFR in principle (I quite like the idea of lawyers being trusted to do the right thing), there are still some practical challenges to be overcome – in particular being able to identify what the right outcome is. Be that as it may, my starting point on education and training was less about the question for debate (do lawyers need to be scholars?) and rather more about the outcome: do we produce lawyers who are fit for practice? My view on that, regrettably, is that we don’t produce enough.
Where the outcomes are not good enough
There are five critical areas where I think practitioners too often fall short:
- Basic legal underpinnings of their work. We can’t reasonably expect practising lawyers to know all the technical law they will ever use. But they should be able to carry out the necessary research to find it when they need it (and too many law firms report deficiencies in this). More fundamentally, we should also expect practising lawyers to know the basics (which is why I’m shocked when some senior litigators apparently rush to negligence actions without considering duty of care, breach or causation). On this basis, even if lawyers do need to be scholars, the process often fails.
- The ability to apply their technical advice. Too often, we hear from clients and other sources of feedback that a lawyer’s advice, while technically correct, has not been applied in a contextualised, meaningful and valuable way that helps the client address their personal or business problem. “Here’s my advice: make up your own mind what to do with it” will hardly endear lawyers to clients or justify the fees that many lawyers seek to charge for their ‘help’. If we are training lawyers to give advice that is technically correct but of no practical utility, we are failing.
- Project management skills. With no apologies to those who don’t like management expressions, there is also little point in training lawyers to give accurate – and even useful – advice and assistance if they are unable to scope, price and deliver their services in an effective and efficient way, at a fee that the client regards as value for money, and that the firm regards as a fair return on the resources used. A large part of the costs debate and Lord Justice Jackson’s search for better proportionality of costs to the issues and value at stake derives from an often deep-seated unwillingness of lawyers to manage and be managed, even (or especially) at the case level.
- The ethical and regulatory framework of professional practice. Integrity must be a major selling point of professional practice. The level of complaints (formal and otherwise) suggests that too many lawyers just don’t get this. Or maybe we simply have too many lawyers to maintain quality and ethics?
- Law as a business. Despite many moves in the right direction, we still don’t have enough lawyers with the ability to build and manage sustainable and valuable business entities that are effectively structured and governed, efficiently run, and capable of surviving beyond the current generation of owners. This is often characterised as a dichotomy between law as a profession and law as a business. This is an old, tiresome and futile argument. Legal practice is both: if you charge people for the advice you give, you’re in business. There’s no reason why you can’t do that professionally and ethically while at the same time being efficient and making a profit.
I’m more than willing to acknowledge that there are many stunning exceptions to each of the five criticisms made above. There are some for whom the education and training framework of legal practice has worked superbly. However, that’s no consolation to the clients who are subjected to the worst examples of each criticism, and any number of combinations of them: for these people, our education and training system has failed them utterly.
If we’re going to sit on a high horse of exceptional quality and ethical integrity, then we’ve set a very high standard for judgement. It might be tough (and yes, it might even be unreasonable) but any significant number of deficiencies will mean that the system is failing. I’m not therefore suggesting for a moment that the whole education and training framework is not fit for purpose, or that no part of it is performing at an exceptionally high level. But judged on the standards and expectations that are set – by the market, regulators and clients – there are far too many manifestations of incompetence, poor service, or unethical behaviour. So, judged on this outcome, my conclusion is that the current education and training framework is not sufficiently fit for purpose (with appropriate apologies to those practitioners and educational providers who are doing a superb job).
The links in the chain
Starting with the outcome, then, the chain of educational development is not reliably strong enough to produce the breadth and depth of competence and skill that twenty-first century legal practice now demands. It seems to me that each of the academic, vocational, training contract, and continuing professional development stages has a role to play, and forms a link in that chain. Unfortunately, each is to some extent (i.e. not totally or universally) now broken in its contribution to the next stage, resulting in the systemic shortcomings described above.
I therefore welcome the education and training review being co-chaired by Dame Janet Gaymer and Sir Mark Potter (and it was pleasing that Sir Mark was able to attend the debate). I look forward to hearing their conclusions and proposals for addressing the systemic shortcomings in the present approach.
The future world of legal practice will not support a one-size-fits-all approach to the structure and delivery of legal services. It will not, therefore, support a similar approach to education and training. We need to be clear about the core knowledge and skills that are necessary in the twenty-first century to justify the award of any protected title and the privilege of practising in one or more of the reserved activities. At the same time, that entry point also has to provide a robust enough foundation for supporting a practitioner’s diversification into any of the near-infinite possibilities and opportunities that the new world might offer.