Nigel Savage argues that legal education is falling further behind the realities of the industry
Let’s get this in context right off the bat. The Training for Tomorrow proposals by the Solicitors Regulation Authority (SRA) represent the most radical change in legal education for over 20 years. When one considers the massive structural changes in the legal services market in recent years, which have been covered extensively in these pages before, we are faced with a unique situation. The legal services sector has moved on and is tackling fundamental issues provoked by a combination of market forces, regulatory changes and the impact of technology. The SRA needs to reflect that environment within the new test of knowledge and competence (the mooted Solicitors Qualifying Examination (SQE), which is billed as a means of raising professional standards and allowing more flexible routes to qualification). It is, however, constrained by the contradiction of a regulatory framework based as much on historic and largely outdated concepts of ‘reserved’ activity and the reality that a huge proportion of the work that takes place in the market (particularly the City) is not reserved and therefore doesn’t require solicitor status. Even where it is reserved, others can often deliver it at a much lower cost.
In other words, should we acknowledge that the traditional solicitor status as we understand it is no longer fit for purpose for the expanding range of skills and competencies needed within a legal environment? There is clearly a public interest in ensuring rights of audience retain some form of reserved status but perhaps the system needs to recognise that solicitors are no longer generalists and a person who intends to devote their entire life to non-contentious work can qualify with a suitably limited practising certificate. All solicitors should have some understanding of dispute resolution but they should have the option to focus entirely on transactional work. Such a change would have the added advantage of enabling the regulators to focus on improving the standards of advocacy in the lower courts.
The proposed direction of travel in terms of a centrally-set test of knowledge and competence (SQE) is the right approach. It provides the potential to create a much more flexible framework that addresses key issues, not least diversity and the engagement of a new generation of tech-savvy lawyers with the intellectual agility to provide clients with solutions. It will also provide a vehicle for bringing about cultural change in the law schools. The LPC delivered many benefits, not least acknowledging that one size doesn’t fit all in the pre-qualification market. The problems, however, arose when the regulators diminished the quality assurance and monitoring regime. Inconsistencies developed between providers as they increasingly prepared students to pass their own internal examinations and the range of routes increased, thus exacerbating comparability. In any event, given the direction of travel in recruitment the LPC has had its day.
Should we acknowledge that the traditional solicitor status as we understand it is no longer fit for purpose?
At undergraduate level the situation is more challenging. The Higher Education Funding Council commented last year that the ‘current quality assurance mechanisms do not ensure consistency of standards across universities’. Law schools, with some notable exceptions, generally perform badly in the National Student Survey and if anything are more distanced than ever before from understanding the revolution that has been going on in the legal services market. Since the HE funding model was de-regulated from direct state funding to student loan and full-cost fees of £9,000, vice chancellors have integrated law schools into super faculties and in some cases trebled the intake of LLB students, using the additional revenue to subsidise research (as opposed to teaching and learning) and underperforming departments in the faculty. Very little has been reinvested in the law schools, least of all in the use of technology to underpin teaching.
There will inevitably be league tables published on how well graduates from particular institutions perform in the SQE, which will, rightly or wrongly, contribute to overall quality indicators. Beyond that the change represents a unique opportunity for some of the prestigious schools to prepare students for the emerging environment. The recruitment process is already extending further into the lifecycle of the LLB. This is in part driven by the diversity agenda but also the increasing need to identify and nurture a wider range of skills such as leadership and teamwork.
In the past the schools have always resisted change on the basis that 50% of their students do not intend to practise and 20% are overseas. Given the changing patterns of recruitment in firms, both groups of students will become increasingly attractive to employers in the context of a much wider graduate recruitment process. The changes will also mean that the solicitors’ qualification will become much more accessible in the global market. Overseas students attending English institutions will be able to take part one of the SQE in England, be recruited by a global firm, return home, complete the competence test and workplace experience in a global office, and qualify as a solicitor without returning to the UK.
Law schools need to respond to these developments. If they don’t they will become even more relics of the past and the law firms will do it entirely themselves.
What of the impact on firms and recruitment? In my work over recent months I have observed the following influencing factors:
- Law firm leaders are on a recruitment journey and are not quite certain where the road is leading them. They have all the ingredients for the cake (in shoring/technology solutions/academies/paralegals and trainees) but they have not quite made the cake yet.
- Firms have different strategies and require a much broader and more flexible workforce with a wider skillset. The direction of travel will lead them towards a broadly-based graduate (or the equivalent) intake much the same as law firm corporate clients. It will embrace cultivating the next generation of value billers as well as technology solutions/project management and BD.
- One of my concerns in recent years has been how we will create the next generation of value lawyers if the work trainees cut their teeth on is disappearing to the expanding regional hubs. The answer in part is that a proportion of those potential fee-earners will come from those centres. I have been impressed by the quality, client engagement and high value of the work that is being carried out in some centres. Legal analysts with just law degrees are quickly taking on assignments to the level of junior associate. These recruits were originally hired with a warning that this is not a back door to a training contract. Some firms have now flipped 360 degrees and see it as a route which under the new regime would be to qualification rather than a training contract. Those Millennial fee-earners will not want to revert to the orthodox training contract model.
- The inevitable consequence of legal services commoditisation is that trainees are now taking on higher levels of work than hitherto. In future firms will require fewer trainees but will have to invest greater resource in their intellectual and professional development.
Law schools need to respond to these developments. If they don’t they will become even more relics of the past and the firms will do it entirely themselves. At the very least there is a real opportunity for an organisation to do what Practical Law Company did for knowhow and precedents and develop sophisticated online learning programmes to match the above trends. For the SRA the huge problem is: where do you draw the line in terms of the standard you expect recruits to have reached and the point they can be admitted? For the firms there is a real opportunity to use the emerging qualification framework and broader recruitment agenda to make a much more strategic contribution to delivering value to the business.
I can hear some of the dinosaurs in the profession saying: ‘This is all very well, but what about high street practice?’ For the last two years I have been a non-executive director of a medical negligence and serious injury practice and the direction of travel is exactly the same. If anything, because of greater cost pressure and excessive regulatory intervention, we are much further down the road.
Nigel Savage is a consultant and non-executive director of Fletchers Solicitors and the former president of the University of Law.