The Wadester is proud to support the UCL debate: Do lawyers need to be scholars? The huge imminent changes to the legal services market are well documented… but what does all this ‘evolution’ mean for the training of lawyers? Do they need to be scholars or do they need to show commercial awareness, be effective communicators, be able to apply legal principles to client issues and provide counsel to clients in a business context?
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It was lovely, as well, to be at UCL again albeit for an evening, indeed where I was a post-doctoral research fellow at the Institute of Neurology. I was interested in the subject of this lecture, as I am a law student about to do the LPC at @BPPLawSchool, having received scholarships at BPP Business School (to do the MBA in which I am currently a full-time student), Westminster School (where I was a Queen’s Scholar), and the University of Cambridge (where I was a Foundation Scholar). I would like to give a special mention to Lee, who was Security for the UCL Engineering Faculty yesterday, where I spent the vast majority of the afternoon, and of course @colmmu and @legalacademia who kept me company before the panel ‘discussion’ – they are pictured below. All wonderful people.
Prof Dame Hazel Genn DBE QC(Hon) FBA BA LLB LLD introduced the panel discussion, as the official Chair of this panel discussion, held at Darwin House, UCL. Prof Genn advised the audience members Legal Education and Training Review (LETR). LETR is a joint project of the Solicitors Regulation Authority (SRA), the Bar Standards Board (BSB) and the Institute of Legal Executives Professional Standards (IPS). This constitutes a fundamental, evidence-based review of education and training requirements across regulated and non-regulated legal services in England and Wales. The legal services sector is experiencing an unprecedent degree of change. LETR is required to ensure that the future system of legal education and training will be effective and efficient in preparing legal service providers to meet the needs of consumers. Final recommendations will be published in December 2012. Their website is hosted by the independent Research Team that is conducting the Review. She mentioned the very wide-ranging terms of reference; it refers to the following:
Prof. Genn outlined that the review is fundamentally to do with the competence of the legal profession, as well as the regulation of the legal profession as a whole. She outlined a fiercely competitive situation in the legal services field, in addition to the high costs of legal education. She emphasised the need for the panel members to be clear about the questions that they sought to answer in the course of the evening. The panel members consisted of Rebecca Huxley-Binns from Nottingham Trent University, David Bickerton from Clifford Chance LLP, Prof. Stephen Mayson, Richard Moorhead, Sir Mark Potter, and Prof. Philippe Sands QC.
Rebecca Huxley-Binns is the Module Leader for criminal law (taught in year two), the law of evidence (final year) and Critical Legal Thinking (final year). In addition, Rebecca is the Coordinator for Learning Enhancement for the whole Law School. She is co-chair of the Learning and Teaching Enhancement group and is also a member of the Nottingham Law School Quality Monitoring Committee and has led various staff development seminars (e.g. on eLearning, assessments, marking and moderation). She is also a Co-Founder and Chair of the Legal Education Group (part of the Centre for Legal Research). Rebecca was awarded UK Law Teacher of the Year in 2010.
Rebecca emphasised that the world works with law, that the law is part of how the world works. Rebecca explained that most law undergraduates ultimately want to have a job ultimately, and part of the beauty of law degrees is that they are so flexible in terms of career outcomes. (The latter part of this argument has been much advanced elsewhere, including by @BaronessDeech; see, for example, Baroness Deech’s podcast with @charonqc). Rebecca emphasised that an inescapable fact of life was that universities are also businesses. Fundamentally, she would abolish the seven foundation subjects – to develop instead a curriculum that embaced the law much better, and education in key legal skills such as statute and case analysis, and to embue the curriculum with pervasive intellectual kills. She cited that academics are prone to ignore how difficult it is in fact to read carefully Supreme Court judgments. She would further like the curriculum to emphasise ethics in such a way that goes more than a code of conduct, and she would prefer to view the curriculum as being more value-driven, explaining the context of law in various socio-political ideologies.
Mr David Bickerton from Clifford Chance specialises in debt and equity capital markets and other financings including high yield, acquisition finance, exchangeables, convertibles, equity derivatives, regulatory capital, project bonds and structured securities and projects (including PFI/PPP) transactions. He pointed out that law firms had not been properly consulted thus far about what they would like to see in the curriculum, that his firm received roughly 50% law and non-law grauates, and they trained about 130 graduates per year. Mr Bickerton explained his personal belief that the degree is fundamentally not supposed to teach people how to be good at the law – his firm are rather looking for aptitude, interest, and a need to pursue law as a vocation.
Prof Stephen Mayson has been consulting in legal practice since 1985. He qualified as a lawyer in 1977, and was for a time a tax lawyer with the firm that was to become Clifford Chance. In addition to his work as a strategic adviser, he was also Professor of Strategy and Director of the Legal Services Institute at The College of Law and a Senior Fellow in the Law School at the University of Melbourne. In 2008, he was appointed to the Ministry of Justice’s Strategy Group for Public Legal Education. He also serves on the Legal Services Board’s research strategy group, the Solicitors Regulation Authority’s ABS reference group, the Bar Standards Board’s advisory panel on the Legal Services Act, and the Bar Council’s policy advisory group and ABS working group.
Prof. Mayson explained that the profession had become “outcomes-focused” – and that practising lawyers tended to be failing in critical areas. One is a failure to develop a basic technical understanding of the work they use the law for. As a profession, we appear to be failing scholars; there are for example senior litigators who do not understand apparently the fundamental principles of duty-of-care, breach, and causation. Lawyers were also very good at exhibiting “the lighthouse in the desert syndrome“, i.e. failing to apply the law in its proper context – the law is brilliant, but otherwise, unfortunately, completely useless. Lawyers also tended not to understand basic project management skills, such as scope, price and delivery of product. Some lawyers suffered from an ability to develop ethical and regulatory skills. Some lawyers seemed unable to build a ‘sustainable’ business entity.
Prof. Mayson further argued that law is both a profession and a business. He felt that the training contract was too long, compared to other jurisdictions, and continuous professional development emphasised compliance with CPD points, but not much ‘actual competence’. Therefore, legal education prescribed too much and enforced too little, whereas the converse should be true (in Prof Mayson’s judgment).
Unfortunately, Prof Mayson felt that the UK had ended up with a system which is not “fit for purpose“, and that the modern training contract had ended up being a “barrier to entry“; and that the “academic stage of training” was best left up to the academics possibly.
Prof. Richard Moorhead‘s main research interests, at the Cardiff Law School, are legal aid, no win no fee arrangements, the courts, the legal profession, regulation of professions and legal systems and socio-legal research methods. He has conducted a number of evaluations of legal service programmes as well as theoretically informed empirical research into the courts and the legal profession. He teaches an undergraduate course on lawyers: practice and ethics and an LLM course on commercial legal practice.
Prof. Moorhead was interested mainly in the answers to two questions.
- Do lawyers need to be scholars?
- Do lawyer need scholars?
Prof. Moorhead thought that lawyers needed scholars, and vice versa. This brought up the spectre of ‘knowledge generation’ – do practising lawyers need to be scholars? No, not really, but sometimes. Lawyers need to understand the client’s case, and to be able to advise on the client’s case. This could in theory be pretty routine, and indeed it could be possible to design a system which is entirely ‘slills based’. Prof. Moorhead felt that this ultimately was not legal education is about.
The answer, Prof Moorhead felt, was partly in the views of students when expressed when they first attend University. Such students appear excited, not know what to expected. In Prof. Moorhead’s view, was that such students wished to ‘do justice’ and to do ‘meaningful work’. Views were wide-ranging including those of academics who wished to understand how the world worked, and how law had subserved society through the ages. This possibly needed an approach similar to that of an ‘educational psychologist’, who understood the key context and concepts. Legal education was more rounded these days, with more teaching techniques. Lawyers therefore needed scholars, otherwise it would not be clear where the knowledge was coming from. Scholars researched the key issues, and there is a key interdependence of lawyers and scholars – without scholarship, the advancement of knowledge would slow. The curriculum therefore needed to be exciting and innovating.
Prof Moorhead emphasised that there was a close link between academics and practitioners in a number of areas. For example, the rule of law was inherent to the current legal aid debate, and the work of other members of panel. Law therefore had a substantial and substantive public policy role. The reputation of the law was in part dependent on the reputation of the universities, and this was essential for the English and Welsh law to be able to compete against New York law firms. This was essential at such a time when law was indeed going ‘global’. The legal curriculum needed to be the best, most exciting, most stimulating, and offering ‘competitive advntage’ – it is the case the law is a business now, and needs to get better and improve. Academia had directly provided a huge input into practice – for example the impact of the Harvard Negotiation Project had been substantial, and there has not been a true equivalent (yet) at the English Bar. Academics were needed to opine on (and criticise over) what worked and what did not, enhancing the competitiveness and quality of the curriculum, well placed to suffuse their thoughts with imagination and experience.
Prof Moorhead described how his views had been shaped by Michael Colville and John Baldwin from the Courts in the area of ‘plea bargaining‘, and there are other examples from his own work where jurisprudence has been directly relevant to the law in practice, for example:
“We are likely to see a significant number of challenges to the government’s legal aid reforms, but the effect of Article 6 challenges is uncertain. It will depend on who brings what cases and, to an extent, the quality of those cases. Short term gains may also bring long term trouble. Article 6 challenges which are successful in one area are likely to lead to cuts in others, unless the judiciary takes a very strong line. More subtly, challenges may close down policy options prematurely. Arguably (although controversially for many) the challenges on family tendering closed off the most plausible alternative to the kinds of scope and eligibility cuts we are now seeing: competitive tendering based on quality and price. The success of that challenge will be used as an argument for having a tendering process based on quality rather than competition. Once this campaign is over, there needs to be some hard thought about how all sides re-engage to protect, rather than argue about, legal aid.”
Prof. Philippe Sands is on sabbatical for the 2011/12 academic year, writing a book on the making of modern international law; he will continue to supervise his existing doctoral students, but will not be engaged in other teaching . He expects to resume his LLM teaching in September 2012. Philippe Sands joined the Faculty in January 2002. He is Professor of Law and Director of the Centre on International Courts and Tribunals in the Faculty, and a key member of staff in the Centre for Law and the Environment. His teaching areas include public international law, the settlement of international disputes (including arbitration), and environmental and natural resources law.
Prof . Sands provided that, currently, legal education was carried out by a variety of people including universities and practitioners, and related to the work of many ranging from solo legal practitioners to international law firms. The review was coming at a time when law appeared to moving from a profession to a business, where indeed large supermarket chains were able to offer legal services. It could be that fundamental issues are what should be taught in legal education. Prof. Sands fundamentally believed that it is the not the function of universities to be restraining professional activity, and that universities did need to respond to what consumers needed. The university environment is supposed to widen one’s education, for the learner to discover how the world functions, and to allow legal practitioners to know how to function, whether this is is in a small practice in Norfolk or at the International Court of Justice. Prof Sands thought there might be immediate steps in improving legal education; for example, improved attention to other jurisdictions (such as Australia), making law a graduate degree, and dispensing with the idea that you need a legal degree to practice. He then conceded that such ideas were indeed provocative, but inherent to what the social function of the law is. Law is not, as such, a business, but a professional fundamentally governed by a duty of independence.
There had been a ballooning of the numbers of students who had been awarded law degrees, in about 5200 to about 13000 in 2010. However, it was important not to lose sight of what the function of the lawyer was in society. Prof. Sands viewed also that the purpose of the law is to widen the mind intellectually, and such challenging was about development of creativity in the legal argument. It was perhaps a sad indictment that such innovation in thinking was nowadays coming from the US courts, and not the English and Welsh ones. Broadening students’ minds, he felt, was ultimately about breaking down barriers.
Sir Mark Potter QC was called to the Bar in 1961 and practised in commercial law at Fountain Court chambers. He tool Silk in 1980. From 1988 to 1996 he was a Judge of the High Court of Justice, Queen’s Bench Division and from 1991 to 1994 he was a Presiding Judge on the Northern Circuit. Sir Mark was appointed a Lord Justice of Appeal in 1996 and became President of the Family Division in April 2005. He offered an overview, without wishing to become immersed in the actual debate.
- LegalAware Review of the Year 2011 – Part 2 (Aug – Sep 2011), from OPEN 2012 to law degrees
- My response to discussion paper 02/2012 SRA/LETR
- Recommendations of the Legal Awareness Society at BPP for the Legal Education and Training Review
- LETR review: brand new survey
- Complete review of 2011 for the BPP Legal Awareness Society