Wednesday, February 29, 2012

What Is Fitness for Purpose?

(thanks to law-services.org.uk)
These are becoming heady days for the legal profession, or rather, I should say "authorized legal services providers" as we may well see lawyers as we've known them become a minority group. The last two months have seen all kinds of new ventures starting under the new ABS regime--BT Claims, Riverview Law, Co-operative Legal Services, Legal365.com, Rocket Lawyer, Slater & Gordon (taking over Russell Jones & Walker)--to name a few.

Today the Legal Services Board and the Legal Services Institute held the first in a series of seminars on "Education and Training: Getting Fit for 2012 Session 1: The Removal of Barriers". Stephen Mayson introduced the seminar by telling the audience how rapidly the legal services market was changing and his list of the last two months' changes was far more extensive than mine. As he put it, "We are seeing the most profound change in the separation of the legal profession from the legal services market. The two are no longer coterminous." The result is that legal education and training (leaving aside the joke that is continuing professional development) are no longer fully fit for purpose. (Do also see Legal Futures on this.)

The speakers, in addition to Stephen, included David Edmonds (chairman of the LSB), Stephen Denyer (global markets partner at Allen & Overy), and Rosemary Evans (legal education consultant). Rather than describe what each speaker said, I prefer to draw out two of the themes: globalization and regulatory standards. Let me say that after this group had said their pieces, the discussion was intense and extensive. We could have easily gone beyond the allotted two hours.

Globalization: There was clear recognition that English law and lawyers are firmly situated in a global legal market. Stephen Denyer pointed out how within A&O only 40% of the lawyers were UK-qualified. Furthermore, he now works "with hundreds of lawyers who are dually-qualified, and scores who are triply-qualified."

It's clear the English legal qualification now suffers in comparison with the New York Bar qualification. It is the de facto global legal qualification. As Nigel Savage and I have argued before, the structure of English legal qualifications--degree, vocational learning, training contract--impedes the route to qualification rather than open it up. I've tried to put this in as stark terms as I can (based on a report I did for the LSB on the global context of legal education).

It is not that UK legal education is bad per se but rather we need to redesign it for a multiplex world and legal marketplace.

Regulatory Standards: If legal education and training are to be redesigned what would they look like and who would be the recipients? Given the range of potential providers of legal services, we can't necessarily rely on a single entry route. We belong in the polycentric camp--many paths.

John Randall, one of the authors of the Legal Services Institute paper, "Reforming Legal Education", remarked that the qualification is important because that's where regulation starts. Rosemary Evans emphasized this by arguing for legal education to encompass more work-based experience and be expansive.

This next point is going to be hard for conventional lawyers to grasp. It's that we have moved to outcomes-focussed measures in our regulatory schemas. So if we accept that there are many paths into the legal services market, they must have the same outcomes measures and there must be mutual recognition. Much of the legal profession and also legal education has relied on status measures (often implicit) rather than objective measurable criteria. Changing this way requires much soul-searching for parts of the legal profession because, to go back to the start, they are no longer the only constituents of the legal services market.

My final two thoughts on this are that the European Commission is presently researching the operation of the Establishment Directive with a view to moving away from vertical differentiation between professions to a horizontal measure that will group all professions (eg, lawyers, hairdressers, engineers) together as cognate groups. Lawyers will no longer be a special group.

The US model of legal education, flawed as it is, is enjoying a remarkable export market to civil law countries and those that used to follow the English model.

Now one reason for this seminar series is to inform the Legal Education and Training Review and to them I extend my deepest sympathies as they plunge into this quagmire.

As I listened to the seminar, I looked down and realized I was holding a book I've agreed to review. It's title is prescient....."Cheaper by the Hour: Temporary Lawyers and the Deprofessionalization of the Law" (by Robert A. Brooks, Temple University Press, 2011).


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