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![Does it work?
Independent study of DW…
• ‘In focus groups, members of the profession
and alumni said they believe that students
who graduate from the program [at UNH]
are a step ahead of new law
school graduates;
• When evaluated based on simulated
client interviews, students in the program
outperformed lawyers who had been admitted to practice
within the last two years; and
• The only significant predictor of simulated client interview
performance was whether or not the interviewer participated
in the Daniel Webster Scholar Honors Program.
Neither LSAT scores nor class rank was significantly
predictive of interview performance’ (my emphasis)
41
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Emerging trends in admissions practices
The document discusses emerging trends in legal education and admissions practices, particularly focusing on the Solicitors Qualifying Examination (SQE) in England and Wales, which introduces a centralized assessment process for prospective solicitors. It also covers adaptations in Scotland, Hong Kong, and New Hampshire, emphasizing the implications of various assessment models and the regulatory landscape affecting legal training. Major concerns include transparency, professionalism, and the impact of high-stakes testing on diversity and access within the legal profession.
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Emerging trends in admissions practices
- 1. Paul Maharg ‘… learningconsists of building up a set of materials and tools that one can handle and manipulate … in the most fundamental sense, we as learners are all bricoleurs.’ (Seymour Papert, Mindstorms, Basic Books,1980, 173) No law degree required? Emerging trends in admissions practices https://www.slideshare.net/paulmaharg/ https://paulmaharg.com/slides
- 2. Preview 1. England – SQEproposals: what are they? – Background to the SQE in England & Wales: a brief account… – What will be the effects of the SQE? 2. Scotland – Professionalism: learning & assessment 3. Hong Kong – Common entry examinations… 4. New Hampshire – Daniel Webster Scholar Honors Program 1 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
- 3. 1. England: SQE proposals:what are they? – Background to the SQE in England & Wales: a brief account… – What will be the effects of the SQE?
- 4. Solicitors Qualifying Examination (SQE)proposals • A common assessment that all prospective solicitors will take before qualifying, comprising: – Stage 1: legal knowledge – Stage 2: practical legal skills – A degree or equivalent qualification – Substantial period of work experience (‘Qualifying Work Experience’, QWE) – Character & suitability requirements https://www.sra.org.uk/solicitorexam/ 3 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
- 5. 16.6.17 Professor PaulMaharg | CC BY-NC-ND 2.5 CANADA 4
- 6. See summary documentat https://www.sra.org.uk/home/hot-topics/Solicitors-Qualifying- Examination.page 5
- 7. Professor Paul Maharg| CC BY-NC-ND 2.5 CANADA 6 https://www.sra.org.uk/sra/policy/training-for-tomorrow/resources/sqe- timeline.page
- 8. issues • Why? – Interalia, transparency, validity, reliability of assessment of undergraduate and LPC performance, single-entry portal to the title of solicitor, step-back from regulation of process to assessment of OBET (outcomes-based training & assessment) • Who assesses? – SRA envisage one centralised assessor being appointed by early 2018 • Are we all agreed on the proposal? – No: major dissent from HE. Dissent from profession, but support from some (NB disputed research findings…). Consultation responses divided and uncertain. Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 7
- 9. Professor Paul Maharg| CC BY-NC-ND 2.5 CANADA 8
- 10. Background factors 1. LegalServices Act 2007 2. Qualifying Lawyers Transfer Scheme (QLTS) 3. Legal Education & Training Review (LETR) Report: http://letr.org.uk 4. SRA’s response to LETR: Training for Tomorrow 9 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
- 11. 1. Legal ServicesAct 2007 • Creation of an uber-regulator, LSB, and ‘front-line’ regulators, BSB, SRA, CiLEX. Law Society left only a representative function. • Belief in market competition as a main regulatory principle • Early SRA had problematic educational role, as top-down regulator. • Are legal services now structured for innovation and change? – See most recent Deloitte report -- 39% of jobs in legal sector at risk of automation. – Competition & Markets Authority still not convinced that consumers and small businesses well served by legal service providers • Is this the best structure to deal with complexity, silo-thinking vs collaboration, uncertainty, creation and implementation of innovation, and the major shift to OFR and OBET? Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 10
- 12. 2. Qualifying LawyersTransfer Scheme (QLTS) • Entry portal for foreign lawyers wishing to practise in England & Wales: an assessment of knowledge and skills without a course, based on ‘Day One Outcomes’ • Replaced pen-paper QLT Test, which was largely discredited. • Assessment, unless actually carried out longitudinally in the lawyer’s workplace, can never give us a complex profile of the working lawyer. But it can give us evidence of how the lawyer might act in specific circumstances. 11 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
- 13. QLTS: basic issuesin the assessment of working professionals So now a two-stage assessment… • Stage 1: MCT on knowledge acquisition, closed-book, testing declarative + procedural knowledge, 180-item, 5.5 hour test, computer-based, delivered world-wide. • Stage 2: 18-station OSCE on skills – 3 areas of law, six exercises in each, all timed. – Statistical analysis of performance, using COSE (coefficient of stability & equivalence) and SEm (standard error of measurement) • Stage 2 based on earlier work in Simulated Clients and the Sim Client Initiative at Strathclyde U and elsewhere. • Single assessment regime and organisation (Kaplan) Eileen Fry & Richard Wakeford (2017) Can we really have confidence in a centralised Solicitors Qualifying Exam? The example of the Qualified Lawyers Transfer Scheme, The Law Teacher, 51:1, 98-103. Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
- 14. 3. LETR Review •Two-year review instructed by SRA, BSB, CiLEX, reported June 2013. • Major issues discussed, inter alia: • Common training • Over-supply • A2J, access to the profession • Was professional legal education ffp? • What is outcome, competence, professionalism in LSET? • How are front-line regulators to regulate? • How should primary professional education link with continuing professional education? Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 13
- 15. (nearly) current entryroutes to the profession in England (thanx Prof Jane Ching) 1417.8.17 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
- 16. (nearly) current entryroutes to the profession in England (thanx Prof Jane Ching) 1517.8.17 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
- 17. LETR on commonentry examination (CEE) 4.144 This chapter also calls on the regulators to work with their communities to develop shared standards. Longer-term development on setting sector- wide outcomes and standards should also be considered as part of a move to a more harmonised LSET system. 4.145 Assessment is at the heart of LSET since it provides the key means of demonstrating that outcomes have been met. LSET requires more robust and more creative approaches to assessment. The report therefore makes recommendations to ensure that legal values are assessed pervasively, and legal writing and critical thinking assessed discretely at the academic stage (or its equivalent). It proposes ways in which client communication skills could be assessed more realistically; it also suggests that the greater integration of classroom and workplace learning would increase the reliability and practice validity of the assessment of professional skills. Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 16
- 18. LETR on participativeregulation • Portrait of the regulator as: – Not QA but QE – Quality Enhancer, to focus on culture shifts towards innovation, imagination, change for a democratic society – A hub of creativity, shared research, shared practices & guardian of debate around that hub – Initiating cycles of funding, research, feedback, feedforward – Archive of ed tech memory in the discipline – Founder of interdisciplinary, inter-professional trading zones • Regulator as democratic designer
- 19. ‘shared space’ andRec 25 Recommendation 25 A body, the ‘Legal Education Council’, should be established to provide a forum for the coordination of the continuing review of LSET and to advise the approved regulators on LSET regulation and effective practice. The Council should also oversee a collaborative hub of legal information resources and activities able to perform the following functions: • Data archive (including diversity monitoring and evaluation of diversity initiatives); • Advice shop (careers information); • Legal Education Laboratory (supporting collaborative research and development); • Clearing house (advertising work experience; advising on transfer regulations and reviewing disputed transfer decisions). Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 18
- 20. LETR’s regulatory alternative Sharedspace concept in urban design: • Minimises segregation between road users • Redistributes risk among road users • Treats road users as responsible, imaginative, human • Holds that environment is a stronger influence on behaviour than formal rules & legislation. ‘All those signs are saying to cars, “this is your space, and we have organized your behaviour so that as long as you behave this way, nothing can happen to you”. That is the wrong story’. Hans Monderman, http://www.pps.org/reference/hans- monderman/
- 21. SRA response? • SRA’sinitial Policy Statement response to LETR Report: dismissive of Recommendation 25, largely on cost grounds • Development of their own approach, not a shared regulatory approach as advised by LETR • Creation of their own research team • Focus on design of outcomes and standards (but arguably not those for future-oriented education and practice) based still upon reserved areas. • Training for Tomorrow reported with no reasoning the basis for an approach based upon centralised assessment and competency-based standards – the SQE. Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 20
- 22. nine key Q& As… Q: Will the SQE… A: … 1 encourage provider collaboration? No. League tables, etc 2 ensure diversity & social mobility? No - cliff-edge of high-stakes assessment with no safety net. 3 reinforce tiers of law schools Of course. Oxbridge? UL? Place of QWE? 4 erode law school creativity? Yes – teaching to the test. 5 be a confirmatory or predictive assessment? Hard to tell, but could be taken as predictive by law firms… 6 assist reflective learning & professional identity formation? No. And what about ethical resistance, rebellious lawyering, public & pro bono lawyering? 7 hollow out skills still further? Probably – skills are conventional, knowledge, skill & value separated out. 8 enable better ethics assessment? Will be difficult to embed authentically 9 support continuing professional development? Doubtful. Common entry exams have almost no effect – cf Bar Exams 21 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
- 23.
- 24. qualifying as a solicitor inScotland Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 23 http://bit.ly/2OCrry3
- 25. professionalism Professor Paul Maharg| CC BY-NC-ND 2.5 CANADA 24 Professionalismoutcomesandpositiveindicators (Maharg,2010)SeeLSS,http://bit.ly/2xA3ujG
- 26. Diploma in ProfessionalLegal Practice – mandatory core Business Awareness Private Client Litigation Conveyancing 1. Professionalism 2. Professional Comms 3. Professional Ethics & Standards Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 25
- 27. Professional Comms Professor PaulMaharg | CC BY-NC-ND 2.5 CANADA 26 Professional Ethics & Standards Professional Communications Professionalism • Ethical behaviour • Standards of behaviour • Interviewing Drafting • Writing Negotiation • Advocacy Research • Precognition-taking • Use of Technology • Justice & democracy • Effective client services • CPD • Diversity and public service
- 28. Traineeship learning structure Fit& Proper Qualifications Work-based Learning & Performance Specialist Trainee CPD Professionalism. Professional Comms. Professional Ethics & Standards. Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 27
- 29. spiral curriculum withinPEAT 1 & PEAT 2 (after Jerome Bruner…) Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 28
- 30. professional training places •Number of traineeships: c.540-550 each year. Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 29 http://bit.ly/2Dej3U4
- 31.
- 32. professional legal education, HongKong • Split profession, solicitors & barristers • Three universities – HKU, CUHK, City U. • Structure of legal education in HK: – LLB – PCLL – Two year training contract – Qualification • Universities set and grade own PCLL exams Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 31
- 33. Common Entrance Examination(CEE) • Profession raised concerns about standards of intrants – variable quality emerging from PCLL. • Students unhappy with pinch points at PCLL & training contract • Law Society of Hong Kong began to be persuaded of the utility of a CEE. Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 32
- 34. basic structure oflegal education in HK – LLB – PCLL – Two year training contract – Qualification Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 33
- 35. If you wereto insert a CEE into this programme of professional learning, where would you put it? ? – LLB ? – PCLL ? – Two year training contract ? – Qualification ? Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 34
- 36. LSHK proposal, starting2021 • New structure of professional legal education in HK: – LLB – PCLL CEE – Two year training contract – Qualification • Simple certificate of completion for PCLL required – no examination results required. Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 35
- 37. the story sofar… • LSHK instructed consultation & report on CEE, to be interdisciplinary, multi-jurisdictional – Ching, Maharg, Sherr. • We argued against CEE, given size and cultures of HK legal system, and proposed alternatives to address the problems in the jurisdiction. • Report unpublished by LSHK, though supported by • More extensive legal education report commissioned by LSHK, this time authored by Webb & Smith, came to broadly the same conclusions - http://bit.ly/2xFBE5t • LSHK determined to pursue CEE – http://bit.ly/2xA1Eiw Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 36
- 38. implications of aLSHK CEE… • As the Hong Kong Bar pointed out, this would make the LSHK ‘the sole body, to the exclusion of all non-members of the Law Society, in control of the admission of solicitors’. http://bit.ly/2xn3hBa • Conflicts of interest? • What happens to the status of the PCLL as a common course for barristers? • Bar also argues against PCLL completion certificate without any form of assessment. Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 37
- 39. Webb & Smithkey recommendations • To enhance consistency of vocational training, consideration be given to establishing a single School of Professional Legal Studies (eg as a joint venture of the university law schools) • Consistent and developmental sets of outcomes be devised for both the PCLL course and the training contract/pupillage stages of training • That the system of PCLL quality assurance be strengthened to include a triennial review of the course. New regulation should be introduced to enable de-accreditation of a PCLL provider • Specified steps be taken to reduce the impact of the PCLL as a numerical barrier on entry to the legal profession • Principles of legal ethics and professionalism be introduced, pervasively or otherwise, at the academic stage of legal education • That the Law Society and Bar each develop a structured training portfolio requirement for the training contract/pupillage stage See http://bit.ly/2xFBE5t Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 38
- 40. 4. New Hampshire: DanielWebster Scholar Honors Program, UNH Law School
- 41. Daniel Webster ScholarHonors Program • Two year Bar practicum in the UNH JD • Training in professional skills and judgment through simulated, clinical and externship settings • Exposure to numerous fields, including real estate, business, and litigation is offered. • Instead of a two-day bar exam, the program provides a two-year, comprehensive exam in conjunction with the training received. • Students who complete the program are certified as having passed the New Hampshire Bar examination, subject only to passing the Multistate Professional Responsibility Examination (MPRE) and the New Hampshire character and fitness requirements. • See: http://law.unh.edu/assets/pdf/johngarvey-article- newmodel.pdf
- 42. Does it work? Independentstudy of DW… • ‘In focus groups, members of the profession and alumni said they believe that students who graduate from the program [at UNH] are a step ahead of new law school graduates; • When evaluated based on simulated client interviews, students in the program outperformed lawyers who had been admitted to practice within the last two years; and • The only significant predictor of simulated client interview performance was whether or not the interviewer participated in the Daniel Webster Scholar Honors Program. Neither LSAT scores nor class rank was significantly predictive of interview performance’ (my emphasis) 41 http://bit.ly/2PVcNSS
- 43. How did UNHachieve this? • Focus on training of sim clients • Authentic and complex sims • Consistent high professional standards • Shared space regulation – regulators, profession, law students, law schools all working together for the public interest Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA 42
- 44. Sim Client Initiative •We made what the client thinks important in the most salient way for the student: an assessment where most of the grade is given by the client • We did not conclude that all aspects of client interviewing can be assessed by SCs – We focus the assessment on aspects we believe can be accurately evaluated by non-lawyers – We focus the assessment on initial interview (which has been extended at one centre to an advice-giving second interview) • Globally, this has changed the way we enable students, trainees and lawyers to learn interviewing & client-facing ethical behaviour
- 45. eg Sim Clientassessment criterion 2 of eight… 2. I felt the student lawyer listened to me. This item is designed to assess the degree to which the lawyer can listen carefully to you. These criteria focus especially on the early part of the meeting when the client should be encouraged to tell their story and concerns in their own words. This entails active listening – where it is necessary for the interview structure or the lawyer’s understanding of your narrative. The lawyer will not interrupt, cut you off, talk over you or rush you in conversation. The lawyer reacts to your responses appropriately. The lawyer may take notes where appropriate, but if the lawyer does so, the lawyer should not lose much eye contact with you. To some extent in this item we are concerned with what the lawyer does not do that facilitates the interview. 44
- 46. 1 2 34 5 Lawyer prevents you from talking by interrupting, cutting off, talking over, rushing you. Takes over the conversation prematurely as if the lawyer already knows all the answers. Lawyer limits your opportunity to talk by interrupting, cutting you off, etc. You are allowed to answer specific questions but are not allowed to expand on topics. Lawyer rarely interrupts or cuts off or rushes you. The lawyer reacts to your responses appropriately in order to allow you to tell your story. More interested in notes taken than in eye-contact with you. The lawyer is clearly listening closely to you. If the lawyer interrupts, it is only to assist you in telling the story more effectively. Lawyer provides opportunities for you to lead the discussion where appropriate. Good eye contact and non-verbal clues. The lawyer is an excellent listener and speaks only when it is clearly helpful to you telling your story. Lawyer uses silence and other non-verbal facilitators to give you an opportunity to expand. Excellent eye contact and non- verbal cues. 45
- 47. 1 2 34 5 Lawyer prevents you from talking by interrupting, cutting off, talking over, rushing you. Takes over the conversation prematurely as if the lawyer already knows all the answers. Lawyer limits your opportunity to talk by interrupting, cutting you off, etc. You are allowed to answer specific questions but are not allowed to expand on topics. Lawyer rarely interrupts or cuts off or rushes you. The lawyer reacts to your responses appropriately in order to allow you to tell your story. More interested in notes taken than in eye-contact with you. The lawyer is clearly listening closely to you. If the lawyer interrupts, it is only to assist you in telling the story more effectively. Lawyer provides opportunities for you to lead the discussion where appropriate. Good eye contact and non-verbal clues. The lawyer is an excellent listener and speaks only when it is clearly helpful to your telling your story. Lawyer uses silence and other non-verbal facilitators to give you an opportunity to expand. Excellent eye contact and non- verbal cues. 46
- 48. 47 Email: pmaharg@osgoode.yorku.ca Osgoode: https//works.bepress.com/paul-maharg Web:paulmaharg.com Slides: paulmaharg.com/slides Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA