Training for success

With the legal training structure once again under the microscope, firms should take the opportunity to consider their own attitudes to trainees. Lawyers need continuing and varied development for the sake of the profession, while a rich training experience can also help with retention of the most talented.

By Louise Stoker, head of training, Slaughter and May

What training does a budding young lawyer need to develop a successful career in law? For over a quarter of a millennium, at least in part, the answer has been through regular on-the-job practise. Until 1994 such work-based learning closely mirrored a traditional Guild apprenticeship. Since then, the training contract has tried to address the problems previously faced by articled clerks. The training contract is now under review, but it is still unclear which model would best serve trainees, employers, the profession and the public. I have yet to meet anyone who doubts that one element of the professional education of a practising professional, such as a lawyer, should be work-based. What cannot be assumed, however, is that learning by seeing and doing is enough. At its best it provides a well-rounded experience that cannot be replicated in a classroom or a simulated environment. But at its worst, it produces generations of lawyers who are ill-prepared to provide advice to clients and are inadequate role models for future solicitors.

The current debate

Some people consider training in its most limited form to be insufficient and lacking in breadth. The talk in the 21st century is of learning, development and outcomes. However, training in the true sense of the word means teaching through regular practice and instruction. These two elements combined should permeate a lawyer’s career to ensure his/her continued development. The English legal profession first recognised the need for formal instruction over 150 years ago. In 1971, the Ormrod Committee on Legal Education had the aim of integrating, as far as possible, academic and vocational legal training. The 1990 Training Regulations provided the first systematic attempt to link law school vocational training with work-based learning. What is the next stage?

The current training scheme is well regarded, but 12 years after the training regulations The Law Society thinks it is time for a change. The aim of modernising the qualification framework before it becomes unfit for purpose is laudable. The concern is that the solutions put forward will leave trainees, law firms and the overall profession in an unenviable position.

Why should training matter to managing partners, or any partners, when they have little or no involvement with a firm’s trainees? Because trainees are the future of law firms. In the wider context, partners should also care about the profession, the public and the trainees themselves. This article focuses on areas managing partners might choose to consider to ensure that their lawyers, and therefore their firms, develop in a way that responds to changing market conditions and secures the future of their firms and the individuals in them.

Firms should seize the opportunity to influence The Law Society’s thinking and try to ensure that mistakes are not repeated. The initial consultation on the new framework for work-based learning closed on 29 September 2006, but The Law Society has indicated it will be happy to consider reactions to its proposals at any stage. The consultation paper stated there will be a further opportunity to comment during the formal three-month consultation period later in the year. Given that we are now in November, that period will inevitably run into 2007. It is essential that as many firms as possible respond individually, as well as supporting the responses of local law societies where appropriate, not least because firms will inevitably differ in their views.

To date, however, there has been such a negative reaction to the proposal that the period of assessed work-based learning should last for a minimum of 16 months, that The Law Society is unlikely to introduce the proposal in its current form. Still, in suggesting that 16 rather than 24 months is the suitable minimum, the results of the last consultation as part of the Training Framework Review in 2005 also seem to have been ignored. Firms should not be complacent, but speak up and add their voices to the debate.

A considerable amount of research needs to be carried out by The Law Society to provide firms with a set of proposals to which they can sensibly respond in detail. However, it is worth considering now whether your firm would be an accredited training organisation under the proposals – and, if not, whether it would be entirely happy for future lawyers to have followed the proposed non-accredited route. As far as I can tell, such a ‘qualified’ solicitor might arrive at your firm having spent only 16 months in work-based learning during his/her career to date, not necessarily in one block and possibly in a legal environment prior to formal academic study. He/she would have had a minimum of four review sessions with an external portfolio supervisor, who may have had no contact at all with the employing organisation(s) and who may have no direct experience of the areas the trainee was working in. An external assessor would then have decided that the individual was ready to qualify, but firms themselves may be concerned about recruiting such a person. In my view The Law Society has yet to prove that the revised external route will guarantee a level of experience and expertise equivalent to the in-house route. If they cannot, they will have created a two-tier system, which will soon become discredited.

The economic cycle

This is not the first time law firms have encountered a Law Society review of the training framework. They have also witnessed a similar stage of the economic cycle many times before, with high levels of activity and increased opportunities in the job market. There is currently an enormous amount of pressure to provide what recruits want. For some firms, the current need to recruit is a product of what happened at a different stage of the economic cycle – one when firms cut back on recruitment in response to lower levels of work.

It is important to respond to the needs of the people who are applying for training contracts. The Law Society and firms alike must bear in mind the economic cycle. One of The Law Society’s concerns is that there is a mismatch between the number of Legal Practice Course (LPC) graduates and the number of training contract places available. Inevitably, some firms will want qualified solicitors without the burden of being a training establishment and looking after trainees, but does it automatically follow that there will be more jobs for qualified solicitors by opening up the routes to qualification? We only need so many solicitors. The demand may fluctuate as a result of factors such as the economy, but there is always going to be a limit on the number that the market will support. At which point should people who simply should not be solicitors have their dreams shattered? Should it be before they embark on the LPC, which for anyone without financial support is an expensive stage of the process? Or should they be allowed to complete the course, work in a variety of environments, pay to be supervised and assessed only to find that they cannot get a job?

If you have studied The Law Society’s proposed ‘day-one outcomes’ (outcomes a solicitor should be able to demonstrate at the point of admission) you will know that law firms will struggle to ensure they provide the range of experiences and opportunities required to be accredited for training. Many practices simply aren't sufficiently broad to allow a trainee to meet all the requirements. In addition, the economic cycle will have an impact on the trainee’s development. When it comes to work-based learning, all firms are inherently limited by the work that is available. Without resorting to case studies and simulations, which could be run just as well in law schools, firms can only involve trainees in the work on offer. Consider whether your firm could produce a qualified lawyer that meets those outcomes. It may be the law firms of today will be unable to provide trainees with the necessary opportunities, and that trainees will have no choice but to build up their portfolio in a variety of environments.

Everyone would agree that we cannot afford to let legal standards drop. In fact, we should be raising the standards of the profession. Otherwise, we may see the legal profession having an impact on the economy instead of the other way around. English law has a global reputation as one of the governing laws of choice. If the standards and reputation of the legal profession decline, that position may
be threatened.

Getting the balance right

It is crucial that the correct standards are set and maintained to ensure the protection of the public and those embarking on a legal career. It is equally important to achieve appropriate levels of regulation and monitoring to guarantee standards but allow law firms to operate as businesses and respond to the needs of their clients. Otherwise, the very opportunities the society is seeking to create may decrease rather than increase. A balanced approach will act as a deterrent neither to law firms, nor the individuals wishing to qualify. The Law Society is correct to observe it is very difficult to have a ‘one size fits all’ requirement, not least because that is one of the things that today’s potential recruits are reacting against. They are looking for a more individual approach. To that extent, the proposals are likely to appeal to trainees, but it is not clear how a regime with so many routes will be regulated. The Law Society openly acknowledges there are concerns about the robustness of the current authorisation and monitoring regime. It is as yet unclear how best practice across the profession will be guaranteed, while also ensuring appropriate firms are given the freedom to self-regulate.

The firm approach

It seems inevitable that, whichever proposals are adopted, it will ultimately be for firms to provide a rich experience for their trainees, which not only prepares them for practice as qualified lawyers but also entices them to stay with those firms. What sort of people do you want your trainees to become? It is clearly in the interests of the firm to develop trainees into good lawyers. This requires a combination of on-the-job experience, formal training and guidance/mentoring.

There has been considerable debate about the best approach to work-based learning. Should we return to the ‘good old days’ of opportunities for the apprentice to learn and acquire experience under the guidance of a skilled craftsman? Certainly, the privilege of observing a master at work, engaging in healthy debate and having a mentor from start to finish worked for some. But this largely depends on the individual principal and their approach to training. The training contract was an attempt to retain the positive aspects of an apprenticeship while also introducing an element of regulation that had previously been lacking. It also moved the focus from the relationship between a principal and an articled clerk to that between the training establishment and the trainee. The Law Society’s current proposals appear to shift back in the direction of relationships between the trainee and a number of individuals, namely the supervisor(s) and the assessor.

Triangular relationship

In my view, the success of legal education depends on a triangular relationship between trainee, individual supervisor(s) and the employing organisation. All have an important role to play. Individual supervisors are key to the training and mentoring of the lawyers of tomorrow. Ideally, however, a trainee should be exposed to both partners and associates. A one-to-one relationship is not sufficient. There should also be someone with an overview of the trainee’s ongoing development – someone with responsibility for ensuring individual supervisors are equipped to support the trainee on a day-to-day basis.

Finally, we should not forget that trainees must not merely have a passive experience. They already have certain responsibilities under the current regime, but it appears they would have more responsibility under the new proposals, especially if following the more radical, non-accredited route to qualification. The period of work-based learning should not be seen as some form of babysitting, where the responsibility is on the sitter to keep control no matter what is thrown at him/her. Trainees have decided to be lawyers. They should be active participants in their own learning and development. It is very easy to spoon-feed junior lawyers in the hope they will develop faster, but firms will not be doing themselves any favours in the long run.

How can firms attract people who are willing to take some responsibility to self-educate, who want to learn and who are engaged in what they do? It is not easy, especially when many of the potential recruits have had limited opportunities to date to shape their own development and many come to law, not with a burning desire to become lawyers, but because they see law as a good first career. We need to make them feel they belong, that they are part of something important and exciting, and that they have a contribution to make. The triangular relationship should combine the elements necessary to protect and fulfil the expectations of the trainees, the public and other members of the profession.

Taking a step back: future firm involvement

To what extent can firms make a difference before trainees actually arrive? The remit and expectations of the vocational stage of training at law school are being pushed further and further. However, this article does not set out to debate the advantages and disadvantages of different approaches to the LPC. The Law Society, and others, generally recognise it is responding to the profession’s drive to make the qualification process fit for purpose. I believe there is value in furthering the links between the formal teaching stage of legal education and work-based learning, but also that it is important to accept the inherent limitations of what can be achieved at each stage of the process. We need to remember who the experts are – and find ways of combining different elements of legal education to ensure that today’s law students become the lawyers, educators and leaders of tomorrow.

Where should firms stop in their quest to produce the best lawyers? Several firms now direct their trainees to complete the LPC at a particular provider and some firms have direct input into what their students study. Will the Graduate Diploma in Law (GDL), colloquially known as ‘the conversion course’, be next? A number of providers have re-worked their GDL courses to ensure they fit better with the LPC and introduce (more obviously than in most law degrees) some of the skills and approaches involved in practising law. Some providers now award an LLB for completion of the GDL and the LPC. Might we now see an increasing numbers of students who want to practise law studying a different subject as their first degree? Presumably, this will depend on whether there are sufficient training contracts on offer for students who have followed that route. If the GDL could be used as a further opportunity to groom students for their future careers, perhaps firms would see it as preferable to a law degree. Are there any comparisons to be drawn between the dual route of the law degree and GDL and the choice between accredited and non-accredited routes currently being proposed by The Law Society for the period of work-based learning? We have a qualification process that already recognises two different routes prior to the LPC. Should it recognise two different routes after the LPC? Certainly, it is essential that the same standards are guaranteed.

I think the LPC will continue to be in the spotlight for the time being. Should the LPC be the gateway to the profession? If so, who should be the gatekeeper? Firms currently have little option but to work with LPC providers to produce the best possible vocational training for their students. Could we see a further stage in the evolution of the LPC, with firms running their own courses rather than in partnership with another provider? Will this return us to a situation where individual firms, and not the profession, have primary responsibility for a lawyer’s education?

Summary

It’s easy to ask lots of questions, but at the moment nobody appears to know the answers. Wherever the future of legal education lies, it is surely a good thing that the world of solicitors is no longer a gentleman’s club – either by reputation or in reality. The Law Society is right to promote an open-door policy. However, it is essential for everybody’s sake that no matter how many people walk through the door, those who are not suitable to qualify as solicitors turn round and walk back out again at some point. It is the timing, not the principle, which is open to debate.

Law firms’ people are their greatest assets, but they also present the biggest challenge. Firms are facing a potentially unique opportunity to shape the role they can play in developing people, but they need to make sure they don’t waste the opportunity. The importance of a gentle touch throughout a lawyer’s career should not be underestimated. Firms now need to ask what they can do to ensure that everyday learning leads to the improved personal and professional development of individuals who will provide an effective client service and feel fulfilled in their jobs. If law firms take correct care of their people, the people should take care of everything else.

Louise Stoker is head of training at Slaughter and May. She can be contacted at louise.stoker@slaughterandmay.com.