Emerging trends in admissions practices

Paul Maharg
‘… learning consists 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

Preview
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?
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

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?

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

16.6.17 Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
4

See summary document at https://www.sra.org.uk/home/hot-topics/Solicitors-Qualifying-
Examination.page
5

6
https://www.sra.org.uk/sra/policy/training-for-tomorrow/resources/sqe-
timeline.page

issues
• Why?
– Inter alia, 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.
7

8

Background factors
1. Legal Services 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

1. Legal Services Act 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?
10

2. Qualifying Lawyers Transfer 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

QLTS: basic issues in 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.

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?
13

(nearly) current entry routes to the profession in England
(thanx Prof Jane Ching)

LETR on common entry 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.
16

LETR on participative regulation
• 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

‘shared space’ and Rec 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).
18

LETR’s regulatory alternative
Shared space 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/

SRA response?
• SRA’s initial 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.
20

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

qualifying
as a solicitor
in Scotland
23
http://bit.ly/2OCrry3

professionalism
24
Professionalismoutcomesandpositiveindicators
(Maharg,2010)SeeLSS,http://bit.ly/2xA3ujG

Diploma in Professional Legal Practice
– mandatory core
Business
Awareness
Private Client
Litigation Conveyancing
1. Professionalism
2. Professional Comms
3. Professional Ethics &
Standards
25

Professional Comms
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

Traineeship learning structure
Fit & Proper
Qualifications
Work-based
Learning &
Performance
Specialist
Trainee CPD
Professionalism.
Professional
Comms.
Professional
Ethics &
Standards.
27

spiral curriculum within PEAT 1 &
PEAT 2
(after Jerome Bruner…)
28

professional training places
• Number of traineeships: c.540-550 each year.
29
http://bit.ly/2Dej3U4

professional legal education,
Hong Kong
• 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
31

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.
32

basic structure of legal education in HK
– LLB
– PCLL
– Qualification
33

If you were to insert a CEE into this
programme of professional learning,
where would you put it?
?
– LLB
?
– PCLL
?
?
– Qualification
?
34

LSHK proposal, starting 2021
• New structure of professional legal education in HK:
– LLB
– PCLL
 CEE
– Qualification
• Simple certificate of completion for PCLL required – no
examination results required.
35

the story so far…
• 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
36

implications of a LSHK 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.
37

Webb & Smith key 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
38

4. New Hampshire:
Daniel Webster Scholar Honors Program,
UNH Law School

Daniel Webster Scholar Honors
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

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
http://bit.ly/2PVcNSS

How did UNH achieve 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
42

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

eg Sim Client assessment 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

1 2 3 4 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

1 2 3 4 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

47
Email: pmaharg@osgoode.yorku.ca
Osgoode: https//works.bepress.com/paul-maharg
Web: paulmaharg.com
Slides: paulmaharg.com/slides

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