Legal Professions and Professional Legal Education in England and Wales. Joint slideset presentation by Professors Paul Maharg & Jane Ching, staff seminar, ANU, July 2015.

1. Professor Jane Ching
Nottingham Trent University
Professor Paul Maharg
Australian National University
Legal Professions
and Professional Legal Education
in England and Wales

2. 2
preview
We shall –
 discuss the shape of the legal services sector in England and Wales,
including the alternative business structure (ABS) position
 consider the emerging educational frameworks for the legal professions
in England and Wales, in the light of and after the Legal Education and
Training Review report in June 2013
 compare the regulatory situation in England and Wales with aspects of
professional legal education regulation in Australia.

3. 3
overview
 Legal services regulation in E+W is an example of supercomplexity,
 LETR showed this extended to legal education in an evidence-based
report that detailed the effects of such complexity
 The frontline regulatory bodies have replied, in a variety of ways, some
of which are more or less radical
 There are implications in this process for Australian legal education, its
regulation and global regulation

4. 4
The shape of the
legal services sector
in the UK

5. 5
Barristers, costs
lawyers, legal
executives, licensed
conveyancers, notaries,
patent attorneys,
registered trade mark
attorneys and solicitors
…
and paralegals, legal
secretaries, barristers’
clerks ….
Advocates,
solicitors,
notaries, patent
attorneys,
registered trade
mark attorneys
and regulated
paralegals
Barristers,
patent
attorneys,
registered
trade mark
attorneys,
solicitors.
Advocates
Advocates,
solicitors
(Jersey);
advocates
(Guernsey)

6. 6
 Become a solicitor/notary:
 LLB in Scots Law (or three
year training contract plus
exams)
 Diploma in Professional
Practice
 Two year traineeship.
 Become an advocate:
 Complete (almost) all of
the solicitor route
 Pass Faculty of Advocates
exams
 8-9 month period of
devilling
 Become a registered paralegal
 Become an IP attorney
 Alternative business
structures will be available in
Scotland under the Legal
Services (Scotland) Act 2010,
but in a different model from
that available in England and
Wales

7. 7
Northern Ireland
 Become a solicitor:
 Recognised law degree
 Vocational course in parallel
with two year training contract
 Become a barrister:
 Recognised law degree
 Diploma in Professional Legal
Studies
 12 month pupillage
 Become an IP attorney
 Alternative business structures
were rejected in 2005.

8. 8
Crown Dependencies
 Isle of Man
 LLB/GDL
 LPC or BPTC
 Two years of articles, during which you must pass
the Manx Bar exams
 Jersey
 LLB/GDL
 Jersey Law course and examinations during practical
experience (2 years for an advocate, 3 for a
solicitor)
 Jersey solicitors can become advocates after 3
years, otherwise advocates must have previously
qualified as a solicitor/barrister elsewhere in the UK
 Guernsey/Alderney/Sark
 Qualify as a barrister or solicitor elsewhere in the UK
 Certificat d’Etudes Juridiques Françaises et
Normandes
 Guernsey Bar examinations before or after 6-12
months pupillage

9. 9
England and Wales

10. 10
Legal Professions in
England and Wales
 Regulated under the Legal Services Act 2007
 Solicitor (138,243 with practising certificates)
 Barrister (15,279 in practice)
 Chartered Legal Executive (7,927, but c 20,000 CILEx members)
 Patent Attorney (2,034)
 Licensed Conveyancer/CLC probate practitioners (1,222)
 Registered Trade Mark Attorney (794)
 Notary (792)
 Costs Lawyer (562)
 [some accountants]
 Regulated separately
 Claims Manager
 Immigration Advisor
 Not currently regulated
 Paralegals
 Will writers

11. 11
Legal Services Act 2007
 The regulatory objectives
 (a) protecting and promoting the public interest;
 (b) supporting the constitutional principle of the rule of law;
 (c) improving access to justice;
 (d) protecting and promoting the interests of consumers;
 (e) promoting competition in the provision of services within subsection (2);
 (f) encouraging an independent, strong, diverse and effective legal profession;
 (g) increasing public understanding of the citizen's legal rights and duties;
 (h) promoting and maintaining adherence to the professional principles.
 “reserved legal activity”
 (a) the exercise of a right of audience;
 (b) the conduct of litigation;
 (c) reserved instrument activities;
 (d) probate activities;
 (e) notarial activities;
 (f) the administration of oaths.

12. 12
Professional Bodies/Regulators
Professional body Regulator
Law Society of England and Wales Solicitors Regulation Authority
Bar Council Bar Standards Board
Chartered Institute of Legal Executives CILEx Regulation
Association of Costs Lawyers Costs Lawyer Standards Board
ITMA/CIPA Intellectual Property Regulation Board
Society of Licensed Conveyancers Council for Licensed Conveyancers
Notaries Society/Society of Scriveners of the
City of London
Faculty Office of the Archbishop of
Canterbury
Legal Services Board

13. 13
and the ABS regulatory
position is…
Who From No of
ABSs
Which reserved activities
Rights of
audience
Litigation Reserved
instrument
activities
Probate Notarial
activities
Oaths
CLC 2011
46
(related to
conveyancing only)
SRA 2012
344
ICAEW 2014
53
IPReg Some entity
licensing from
2010, ABSs from
2015
(related to IP only) (related to IP only) (related to IP only)
BSB Entity licensing
from 2015 (ABSs
later)
CILEX Reg Entity licensing
from 2015 (not
ABS)

14. 14
And you thought
that was complicated…

15. 15Skills for Justice, ‘Route Maps of Entry Legal Profession’ (Skills for Justice) <http://www.sfjuk.com/wp-content/uploads/2012/12/Visio-
RouteMapsOfEntryLegalProfession_FullMap-0513.pdf> accessed 8 February 2015

16. 16Skills for Justice, ‘Route Maps of Entry Legal Profession’ (Skills for Justice) <http://www.sfjuk.com/wp-content/uploads/2012/12/Visio-
RouteMapsOfEntryLegalProfession_FullMap-0513.pdf> accessed 8 February 2015

17. 17Skills for Justice, ‘Route Maps of Entry Legal Profession’ (Skills for Justice) <http://www.sfjuk.com/wp-content/uploads/2012/12/Visio-
RouteMapsOfEntryLegalProfession_FullMap-0513.pdf> accessed 8 February 2015

18. 18
Based on a law degree
Solicitors (plus LPC, plus training
contract)
Barristers (plus BPTC, plus
pupillage)
A degree not required (but
you might get credit if you
have one)
Chartered Legal Executive
Costs lawyer
Licensed conveyancer/CLC
probate practitioner
(At least one) degree
required and possible
credit for a law degree
Patent attorneys
Registered trade mark
attorneys
Notaries
LLB
and
GDL
who needs a
law degree?

19. 19
Academics: the LLB isn’t
designed as professional
preparation Hands off!
Regulator: we agree, so
an LLB isn’t mandatory!
Don’t expect us to do
your recruitment for you!

20. 20
Academics: ‘the LLB isn’t
designed as professional
preparation. Hands off!’
Regulator: ‘we agree, so
an LLB isn’t mandatory.
Don’t expect us to do
your recruitment for
you!’

21. 21
Academics: ‘the LLB isn’t
designed as professional
preparation. Hands off!’
Regulator: ‘we agree, so
an LLB isn’t mandatory.
Don’t expect us to do
your recruitment for
you!’

22. 22
“ ...promoting competition in the
provision of services”
Chartered Institute of Legal Executives, ‘Infographic’ <http://www.cilex.org.uk/pdf/Infographic%20A5.pdf> accessed 23 February 2015

23. 23
Legal Education and Training Review
Report (June 2013)

24. 24
Webb J., Ching, J., Maharg, P., Sherr, A. (2013). ‘Setting Standards:
The Future of Legal Services Education and Training Regulation in
England and Wales’
http://letr.org.uk/the-report/index.html
http://ials.sas.ac.uk/research/LETR_report.htm

25. 25
research questions
1. What are the skills/knowledge/experience currently
required by the legal services sector?
2. What skills/knowledge/experience will be required by the
legal services sector in 2020?
3. What kind of legal services education and training (LSET)
system(s) will deliver the regulatory objectives of the Legal
Services Act?
4. What kind of LSET system(s) will promote flexibility, social
mobility and diversity?
5. What will be required to ensure the responsiveness of the
LSET system to emerging needs?
6. What scope is there to move towards sector-wide
outcomes/activity-based regulation?
7. What need is there (if any) for extension of regulation to
currently non-regulated groups?

26. 26
 Quality of:
 Professionalism and ethics
 Competence standard, especially on baselines
 Addressing “gaps” such as
 Legal research and digital literacy
 Communication skills (including writing and advocacy)
 Commercial and social awareness
 Management skills
 Equality and diversity outcomes
 Thinking about continuing competence
we drew conclusions about…

27. 27
 Consistency and quality assurance
 Assessing outcomes
 Supervision and learning in the workplace
 Specialist accreditations
 CPD and continuing learning
 Cost of training
 Apprenticeships
 Blending work and study differently
 Accrediting work in different environments
we drew conclusions about…

28. 28
 Access and mobility
 Equality and diversity in entry
 Fast track entry for people with experience
 Mobility between routes and professions
 Information
 Flexibility
 Different routes to the same end
 Different configurations
 Future research
 LETR’s just the beginning of a process…
we drew conclusions about…

29. 29
we recommended
 Regulators should state outcomes and standards
 Outcomes defined by reference to the knowledge, skills and attributes
of a competent practitioner
 Standards set
 Co-ordination and collaboration
 Review some content, ie
 Redraft ethics, legal research, written and oral communication skills
 Introduce concepts of morality and law, values and the role of lawyers
 Post-qualification: focus on professional conduct, management, and
equality & diversity by taking account of educational research
 Adjust the balances in the LLB/GDL
 Assess research, writing and critical thinking in the LLB/GDL
 Adjust the vocational courses

30. 30
 Flexible structures
 Working and studying in different configurations
 Adjusting periods of supervised practice (such as the training
contract)
 Focusing CPD on learning, not just “hours”
 Supporting apprenticeships, access to internships and
placements, progression for paralegals, voluntary regulation of
paralegals outside regulated organisations
 Provision of information
 On diversity
 On careers, options, research, opportunities
 Sharing of good practices, research etc between
providers, regulators and government.
we recommended

31. 31
what we said on
assessment standards
4.50 “a move to OBET … may improve reliability of
assessment techniques, rather than the reverse”
4.111 “Existing assessment strategies tend to focus on
conformity as a proxy for consistency”
4.123 There is a legitimate regulatory interest in
ensuring that assessment is robust. It must be capable
of assessing that which it sets out to assess (valid); it
must produce consistent and replicable results
(reliable); and it must assess against the syllabus and
learning outcomesthat have been set out (fair)
4.123 “Standardisation … can be achieved by extending
the number of credible judgments in respect of a task,
and by ensuring that those judgments are collected
and evaluated systematically”
Outcomes, shared standards
and standardisation
4.50 “a move to OBET … may improve
reliability of assessment techniques, rather
than the reverse”
4.111 “Existing assessment strategies tend
to focus on conformity as a proxy for
consistency”
4.123 There is a legitimate regulatory interest in
ensuring that assessment is robust. It must be
capable of assessing that which it sets out to
assess (valid); it must produce consistent and
replicable results (reliable); and it must assess
against the syllabus and learning outcomes that
have been set out (fair)
4.123 “Standardisation … can be achieved
by extending the number of credible
judgments in respect of a task, and by
ensuring that those judgments are
collected and evaluated systematically”
Outcomes, shared
standards and
standardisation
ThanxJulian…

32. 32
assessment of outcomes at the heart of the
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.

33. 33
Colin Scott’s approach:
 ‘a more fruitful approach would be to seek to understand where the
capacities lie within the existing regimes, and perhaps to strengthen those
which appear to pull in the right direction and seek to inhibit those that
pull in the wrong way’
 ‘meta-review’: ‘all social and economic spheres in which governments or
others might have an interest in controlling already have within
mechanisms of steering – whether through hierarchy, competition,
community, design or some combination thereof’ (2008, 27).
Our approach:
 Shared space
regulatory approaches

34. 34
Norms Feedback Behavioural
modification
Example Variant
Hierarchical Legal Rules Monitoring
Powers/Dutie
s
Legal
Sanctions
Classic
Agency
Model
Contractual
Rule-making
&
Enforcement
Competition Price /
Quality Ratio
Outcomes of
Competition
Striving to
Perform
Better
Markets Promotion
Systems
Community Social Norms Social
Observation
Social
Sanctions, eg
Ostracization
Villages,
Clubs
Professional
Ordering
Design Fixed with
Architecture
Lack of
Response
Physical
Inhibition
Parking
Bollards
Software
Code
Modalities of control (Murray & Scott 2002)

35. 35
regulatory alternative of
shared space
Shared spaces concept in traffic zones:
 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 behavior so that
as long as you behave this way,
nothing can happen to you.”
That is the wrong story’.
Hans Monderman, http://bit.ly/1p8fC3u
TheArt&ScienceofSharedStreets,
http://bit.ly/1p8fr8r
SeealsoHamilton-Baillie(2008).

36. 36
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

37. 37
And what happened next…?

38. 38
the Legal Services Board
Over time we expect regulators to have in place regulatory
arrangements for education and training that deliver the following
outcomes:
 Education and training requirements focus on what an individual must know,
understand and be able to do at the point of authorisation
 Providers of education and training have the flexibility to determine how to
deliver training, education and experience that meets the outcomes required
 Standards are set that find the right balance between what is required at the
point of authorisation and what can be fulfilled through ongoing competency
requirements
 Regulators successfully balance obligations for education and training between
the individual and the entity both at the point of entry and on an ongoing
basis
 Regulators place no inappropriate direct or indirect restrictions on the
numbers entering the profession
Legal Services Board, ‘Statutory Guidance on Legal Education and Training’
<http://www.legalservicesboard.org.uk/news_publications/press_releases/pdf/20140304_LSB_Education_And_Training_Consultation_Response_And_Guidance.pdf>
accessed 19 May 2015
Legal Services Board, ‘Increasing Flexibility in Legal Education and Training’
<http://www.legalservicesboard.org.uk/what_we_do/consultations/open/pdf/20130918_consultation_paper_on_guidance_for_education_and_training_FINAL_for_public
ation.pdf>

39. 39
CILEx Regulation
 Embraced apprenticeships
 Obtained rights to independent practice (and changed its
name as a result) including litigation and immigration
 “Figures revealed last month by the Central Applications
Board admissions service showed that the number of
applications for the LPC’s 2014/15 session have decreased
by 10% compared to the previous year, however, the
number of applications for CILEx’s specialised graduate
programme has increased by 32% during the same
period.” (August 2014)
 Sponsored a “paralegal enquiry”

40. 40
Bar Standards Board
 Plans:
 Developing a competency framework for barristers
 Aligning the Bar Training Regulations (BTRs) to modern regulatory
standards
 Establishing an outcomes-focused approach to continuing professional
development
 Sharing data to support our regulatory objectives in education & training
 Improving access routes to the profession
 Collaborative development of Academic Stage regulation
 Consulting on a competence statement
 “Assessing” alternatives to a graduate route
 Possible flexibility and freeing up of the BPTC from 2017, if focus is on
outcomes
 “We are not convinced there is a need for us to prescribe the structure of
pupillage” – consultation planned
 Piloting and consulting on a non-hours based CPD approach
Bar Standards Board, https://www.barstandardsboard.org.uk/media/1650565/future_bar_training_programme_update_february_2015_pdf__va499362_.pdf
Bar Standards Board, ‘Future Bar Training Continuing Professional Development (CPD)’
<https://www.barstandardsboard.org.uk/media/1668707/cpd_consultation_2015.pdf>

41. 41
Solicitors Regulation Authority
 Currently involved in ‘Training for tomorrow’ project:
 Qualification stage:
 Competence statement
 Consultation on a (possibly centralised) assessment
 Implications for LLB/GDL; LPC, training contract
 “Equivalent means to bypass any of the three stages
 Apprenticeships
Post qualification
 Competence statement now in place for qualified
solicitors
 Non-hours based CPD model adopted

42. 42
regulating irregularly?
 In Australia, the example of the ANU GDLP – innovation that
is permitted by a regulator in ACT, with light touch
 But cross-jurisdictional accreditation? Multiple regulators?
Multiple standards? Is the field becoming ungovernable?
 Accreditation standards at HE and professional stages?
 How do we prevent supercomplexity, promote diversity,
ensure outcomes & standard, and a regulatory process that’s
based on sound first principles?
 Are we not facing the same problems here?
 In every jurisdiction?

43. 43
LETR 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).

44. 44
contact
 Jane Ching, Professor of Professional Legal Education, Nottingham Law
School, Nottingham Trent University, jane.ching@ntu.ac.uk
 Paul Maharg, Professor of Law, ANU, paul.maharg@anu.edu.au
 Slides @ http://paulmaharg.com.