Solicitors’ Employment Pre-qualification

A. Articles of Clerkship

From the eighteenth century, intending lawyers, attorneys, notaries and solicitors entered articles of clerkship with an established practitioner, the principal, for periods of between five and seven years.

Following the Ormrod Report in 1971, five-year articles of clerkship were phased out⁵ and a university degree and two years’ articles became the norm. Burrage thought that the ‘hardship, drudgery and semi-servitude’ of five-year articles encour­aged an appreciation of membership and the time served offered thorough induction into the ethical community.⁶ He suggests that subsequent preference for the university route led to declining responsibility for the ‘collective honour of the profession’.⁷ If this is true, training carries heavy burdens. They include translating learned principles of conduct into practice and impressing entrants with their importance.

B. The Training Contract

The training contract replaced articles of clerkship in 1993, when the Legal Practice Course (LPC) and the Professional Skills Course (PSC) were introduced. Continuity between the LPC and the training period was improved and trainees had to work in four different departments, or ‘seats’, to gain broad experience. The PSC comprised

³ E Cruikshank, ‘Building a Profession’ (2003) 100(25) Law Society Gazette 32.

⁴ J Slinn, A History of Freshfields (London, Freshfields, 1984); J Slinn, Linklaters and Paines—The First One Hundred and Fifty Years (London, Longman, 1987).

⁵ The Hon Mr Justice Ormrod (chair), Report of the Committee on Legal Education (Cmnd 4595, 1971).

⁶ M Burrage, ‘From a Gentleman’s to a Public Profession’ (1996) International Journal of the Legal Profession 45, at 68.

⁷ ibid, at 72.

SOLICITORS’ EMPLOYMENT PRE-QUALIFICATION 577 further communication and advocacy skills, financial and business skills and client care,^[2485] together with an ethics component with minimum tuition time of 12 hours.^[2486] Firms were required to provide study leave and pay the course fee. A code of conduct was introduced requiring monitoring and appraisal of trainees.^[2487]

In the late-1960s, 5 per cent of firms still demanded payment of a premium by the articled clerk, but most paid small salaries. The Law Society recommended this be seen as an ‘allowance’ rather than a living wage.^[2488] Under the training contract, firms had to pay trainees a minimum salary, unless waiver was granted.^[2489] They were subject to closer monitoring^[2490] possibly resulting in them being prevented from taking on trainees. Small and niche firms could collaborate to provide four seats, but the bureaucratic requirements were more difficult to meet. The changes upset a delicate balance whereby first year traineeships were of equal benefit to firm and trainee, but the second year mainly benefited the firm.^[2491]

The new requirements resulted in training contracts becoming a bottleneck in the qualification process. In 1988, the Law Society had reported a recruitment crisis, par­ticularly in local government, the CPS and in private practice in the North East, parts of the North West and the Midlands.^[2492] The report noted that ‘even firms in the City of London report difficulties’.^[2493] In 1995 there were nearly 10,000 applications to study the LPC but only 7000 full-time and 954 part-time places. Then there were only 4063 training contracts registered with the Law Society for 7800 students studying the LPC.

C. Barriers to Entry

i. Discrimination

During the 1980s pressure mounted for the legal profession to reflect the composi­tion of society.^[2495] The Law Society appointed an equal opportunities officer and, in

1995, introduced the Solicitors Model Anti-discrimination Policy.^[2496] Based on the Sex Discrimination Act 1975 and Race Relations Act 1976, the model policy defined direct discrimination as treating people ‘less favourably’ on the grounds of sex or race. Indirect discrimination was defined as applying an unjustifiable requirement or condition equally to all groups when it has a disproportionately adverse effect on one particular group.^[2497]

Solicitors who did not have an anti-discrimination code of their own were deemed to have adopted the Law Society’s model policy. The model policy was very relevant to recruitment. It provided that the firm subscribed to equal opportunities hiring policies, and would ensure that ‘applications are attracted from both sexes and all races and from people with disabilities’.^[2498] It committed firms to take ‘positive action to ensure greater representation of unrepresented groups’.^[2499] It also committed them to ‘compliance with Law Society policy on targets for the employment of ethnic minorities’,^[2500] defined as people of ‘Asian, African-Caribbean, African or Chinese origin’.^[2501]

A schedule to the model policy noted that setting enforceable quotas was con­trary to the law, but that setting targets ‘to reach as good practice’ was not.^[2502] It went on to state that small firms with between six and ten fee-earners should have at least one fee-earner of ethnic minority origin and firms with more than ten fee­earners should have at least 10 per cent trainees and 5 per cent fee earners from ethnic minorities.^[2503]

Solicitors introducing their own policy on anti-discrimination were bound by a new anti-discrimination rule providing that firms would not discriminate on grounds of race, sex or sexual orientation, and ‘must not discriminate unfairly or unreasonably on grounds of disability, in their professional dealings with clients, staff...

Throughout the 1990s the Law Society developed greater understanding of entry to the profession. It funded two studies of training. In the first, Goriely and Williams assessed the impact of the new training scheme, finding deep problems in the process. Following their report, the Law Society commissioned a longitudinal study of the

SOLICITORS’ EMPLOYMENT PRE-QUALIFICATION 579 process of entry to the legal profession. The ‘Cohort Study’ eventually comprised six surveys, undertaken by different academic teams, following a large group of under­graduate students into practice.^[2507]

Goriely and Williams reported that a key question in recruitment to solicitors’ firms was ‘are they one of us?’.^[2508] This potentially discriminated against anyone who was not male, white and middle class. Nepotism and favouritism were deeply ingrained. In 1995, at the same time as the Law Society issued its model anti-discrimination policy, a President of the Law Society wrote to the Gazette, defending discriminatory practices in small firms. It was acceptable, he said, if a firm, while not intending to take a trainee, made ‘an exception for the son or daughter of one of its partners or valuable clients’.^[2509]

Surprisingly, the President’s view was somewhat vindicated when, in 2001, the Lord Chancellor survived a challenge to his appointment of ‘a friend’, former Herbert Smith lawyer Garry Hart, to be his special adviser. The Court of Appeal held that, in the circumstances, appointment from close circles of family, friends and acquain­tances was ‘not likely to constitute indirect discrimination’.^[2510] This gives a sense of the rather uncertain attitudes regarding discrimination at the time.

The Law Society’s efforts on recruitment to the profession were gradually repaid. Of the 104,543 solicitors with practising certificates in 2006, 44,394 were women and 9,471 from ethnic minorities.^[2512] While this approached proportionate representation, the pattern of employment was a new concern. In 2008, just over one half of minority ethnic group solicitors worked in firms with four or fewer partners, compared with only 28 per cent of white Europeans.^[2513] The Law Society’s own research had already suggested why this might be.

The third cohort study found that ethnic minorities might not get training contracts in large firms because of indirect discrimination. Large firms tended to recruit early, offering training contracts to second year undergraduates, in order to compete for ‘high flyers’. Since this meant that a degree classification was not available, the firms took ‘A’ levels as the most reliable indicator of academic quality.^[2514] This was also

common practice among elite, non-lawyer corporations.^[2515] It favoured students with social capital, from professional backgrounds, and disadvantaged those from lower social classes and ethnic minorities.^[2516] It may have also sent a message that elite employers did not want to attract them.^[2517]

As a result of the publicity generated by the research, some large firms did, appar­ently, adjust their recruitment practices. Many tried to recruit from a more diverse pool, using work placements to screen potential trainees with non-traditional profiles. In the wider profession, diversity continued to provoke mixed reactions. A survey in 2007 showed that nearly 70 per cent of lawyers favoured hiring former compre­hensive school students, but between 30 and 40 per cent were opposed to diversity monitoring.^[2518]

ii.

Cost proved a significant barrier to entry.^[2519] Large firms paid course fees and provided a living allowance to their intending trainees. Other entrants had to find around £10,000 for LPC fees plus living expenses. Many decided not to add to their under­graduate debt. In 2002, a severe shortage of trainees in legal aid work led the Legal Services Commission to sponsor solicitors working in legal aid firms, and intending barristers to work in immigration and asylum.^[2520] In return, they gave a commitment to work for two years post qualification in legal aid. This, it was thought, would benefit disadvantaged entrants.^[2521]

By 2010, 750 legal aid lawyers had been helped to qualify in the previous eight years, but the scheme had not worked quite as intended. Many recruits to the Training Contract Grant Scheme were altruistically motivated students from wealthy backgrounds.^[2522] The advantage lay in encouraging the many firms which claimed that they would not have been able to afford trainees without the scheme. In 2010, the Ministry of Justice announced that it was dropping the scheme immediately. It explained that ‘we now have too many lawyers chasing too little work, and greater pressure to save public money, so the financial inducements no longer make eco­nomic sense’.^[2523]

D. Quality of Training Experience

i. Differences between Large Firms and Small Firms

Research in the 1980s suggested that some trainees experienced legal work as ‘a nasty shock’.^[2524] In the mid-1990s a survey of trainees and recently qualified lawyers found a ‘considerable level of disquiet’, attributable ‘to debt, lack of job security and the quality of supervision and training’.^[2525] Goriely and Williams found that small firms often looked for a short-term return on salaries and were more likely to give trainees routine tasks, such as photocopying.^[2526] Large firms tended to recruit trainees with a view to their long-term development. The Law Society’s longitudinal study found the differences in motivation were reflected in training experience.

Large firms increasingly tended to employ directors of education and training. Numbers increased from four to 96 between 1987 and 1990.^[2527] This helped improve the quality of training in-house, including PSC and Continuing Professional Development programmes, but there were some negative consequences. One was that it weakened bonds between trainees and individual partners. This combined with the effect of movement of trainees between ‘seats’, with the result that large firm partners spent less time in their training role.

Large firm trainees found that training replaced experience in their early develop­ment as lawyers.^[2528] They had inadequate exposure to clients and no work of a suffi­ciently low level on which to cut their teeth. In contrast, small firm trainees often had too much experience. Some complained of having to quickly manage onerous casel­oads with inadequate supervision and of being expected to contribute to profitability. Others welcomed responsibility and the opportunity to develop.^[2529]

ii. Harassment and Bullying

Respondents in the fifth cohort survey reported a disturbingly high incidence of harassment and bullying. This was reflected in calls to the Trainee Solicitors’ Group (TSG) Helpline. In 1997/98 there were 42 calls to the TSG Helpline. One trainee reported being asked to take an ‘unethical short cut’ at work. Having refused, the trainee claimed that he ‘was subjected to such a malicious campaign that, eventually, I had to leave’.^[2530] The following year, there were 122 calls to the Helpline in the first six months.^[2531] The TSG liaison officer reported also receiving 2500 calls a month, many from trainees. Some reported firms hiring para-legals on the promise of a training contract ‘if we like you’ and holding out para-legals as trainees.

Between 1 August 2003 and 12 March 2004, there were 1,162 calls to the helpline. Of these, 13 per cent related to bullying and harassment, including sexual harassment, or inadequate training and supervision.^[2532] In the year from March 2004 to March 2005, 2,241 calls were received.^[2533] In 2008 the TSG was replaced by the Junior Lawyers Division of The Law Society. Thereafter, trainees could ring the Law Society’s other helplines or consult the list of frequently asked questions on the Law Society web- site.^[2534] These contained a familiar set of complaints, from failings, such as not register­ing training contracts, to bullying.

iii. Ethical Components of Training

In the 1990s, Goriely and Williams found little evidence of any kind of informal ethical induction within firms. Few trainee supervisors had read the Guide to the Professional Conduct of Solicitors, regarding it as a reference work rather than an integral part of working life. Trainers and trainees were dismissive of the PSC, except for the advocacy component. Trainees regarded the day spent on professional conduct as a ‘token gesture’.^[2535]

Despite a review of the training scheme in 2000, the Law Society’s guidance to trainees raised few expectations regarding ethics in the training contract.^[2536] Guidance issued in 2007 provided lists of skills and subjects to which the trainee was to be exposed. It provided for reviews, appraisal and ‘guidance’, but barely mentioned eth­ics, even in an extensive list of trainee responsibilities.^[2537] It did, however, recommend that trainees record any professional conduct issues arising in their training contract record.

E. Reform of Training

A recurrent policy issue was whether the system of training could achieve similar results in different ways,^[2538] including shorter and cheaper routes to qualification. In 2005, the Law Society’s Training Framework Review proposed Day One outcomes

SOLICITORS’ EMPLOYMENT PRE-QUALIFICATION 583 to be met by intending solicitors. No particular route for achieving the outcomes, was prescribed, but a two-year period of work-based learning was retained as a pre­requisite for practice. It was proposed this could be completed at a range of training organisations, without the need to provide four seats.^[2539]

The Training Framework Review proposed tighter procedures for monitoring and review of trainees. This included regular appraisal, completion of a reflective journal and a centrally administered test, involving ethics questions. All of these elements were to be completed before the end of the work-based learning period. This liber­alisation of the training period regime allowed students to qualify through different routes, including by having previously worked for a firm as a para-legal. Trainees could have a maximum of six months removed from their two-year training con­tract by agreement with their employing firm. The SRA then ran a successful pilot programme to explore work-based learning as an alternative to a training contract.

The work-based learning pilot required candidates to acquire, develop, apply and evidence skills and knowledge. Eight key learning outcomes included the practical application of the law, professional communication, relationships with clients and the application of the rules and principles of professional conduct in legal practice.^[2540] Students could also qualify through a supervised work-based programme. An exam­ple of such a programme is an unpaid work placement at a registered firm, combined with work in a university law clinic.^[2541]

i. Current Training Regime

The main elements of the training regime introduced in 1993, including the training contract, survive for the present. The main thrust of policy is towards liberalising requirements for work-based learning rather than replacing them. Under the SRA’s current regulations, training establishments must provide trainees with close super­vision by partners, senior solicitors or others with the appropriate experience in English law.^[2542]

Trainees must receive regular feedback and at least three appraisals during training. They must have practical exposure to three distinct areas of English law, skills in both contentious and non-contentious work and development of practice skills meeting the practice skill standards. Trainees must maintain a training contract record linking experience to the skills developed.

Under the current SRA training regulations, a training establishment can grant a reduction in the period of the training contract of up to six months. It must be satis­fied that a trainee considered for this reduction has gained equivalent experience in one or more areas of English law, and acquired one or more of the practice skill stan­dards, in the three years immediately preceding commencement.^[2543] For the experience

to count, the prospective trainee must have been working full-time, or not less than two and a half days per week, and been adequately supervised and appraised.^[2544]

ii. Current Entry Patterns

In 2011/12 nearly 15,000 students graduated with a degree in Law.^[2545] Just over a third of these graduates are from Black and Minority Ethnic (BME) groups.^[2546] Around 60 per cent aim to qualify as lawyers, mainly solicitors.

a. Traineeships

In 2007/08, 6,303 traineeships were registered, the highest number since recording began in1998/99. The following year, registrations fell compared with the previous year, by 8 per cent, to 5,8 09.^[2547] In 2011/12, registrations again fell, to the lowest ever recorded level, 4,869.^[2548] A large component in this decline is ascribed to the general economic situation. The practice of appointing candidates for traineeship as para- legals^[2549] could be a contributory factor.

Of the new trainees registered in 2009, 62 per cent were women and nearly 20 per cent with known ethnicity were from minority ethnic groups. In 2012, the proportion from BME groups was up to 23 per cent.^[2550] Nearly 40 per cent of the training contracts were from firms located in the City of London. The next largest groups were the rest of London, at 16 per cent, the North West at 12 per cent and the South East at 7 per cent. Nearly 94 per cent of the traineeships were with private practice firms with nearly 40 per cent in firms with more than 81 partners. The intake of these firms com­prised 771 men, 42 per cent of all men, and 926 women, 34 per cent of all women.^[2551]

b. Admissions

In 2011/12 admissions to the roll of newly qualified solicitors fell from the all-time high of 8,491 in 2008/09 to 6,350.^[2552] The drop of nearly 25 per cent is the largest since records began.^[2553] Of the total entrants, around 50 per cent were law graduates, while 16 per cent were conversion course students. The largest age group for new admissions, around 1600, was the 30 to 40 range. This reflects the fact that just over 20 per cent of admissions in 2011/12 represented members of other legal professions converting to being solicitors.

Of the converts to the solicitors’ profession among new admissions, around 14 per cent were overseas lawyers, 6 per cent barristers and 2 per cent FILEX transfers.^[2554] Of the overseas lawyers, the largest group being admitted as solicitors were lawyers from Australia and New Zealand. The proportion of transfers into the solicitors’ profes­sion actually fell in 2011/12, from 25 per cent in 2009. This was possibly due to low levels of registration for the Qualified Lawyers Transfer Scheme, which replaced the Qualified Lawyers Transfer Test in 2010.

Since 2001/02, the admission of men as solicitors was consistently 10 to 20 per cent lower than that for women. In 2001/02 the percentage of men being admitted as solici­tors was 44 per cent, whereas in 2012 it was 40 per cent.^[2555] In fact, the proportion of men being admitted in 2012 was at the lowest level since 1996. Around 27 per cent of new admissions were BME candidates. The proportion had risen from 16 per cent in 2002 and 20 per cent in 2007.^[2556]

iii. Proposed Reform

The Legal Education and Training Review considered the fitness for purpose of the system. The research report stated that firms look for good ‘A’ levels and ‘good’ universities.^[2557] The report presented some data on attitudes towards the training con­tract. On a scale ranging between ‘completely agree’ and ‘completely disagree’ only 38 per cent of solicitors ‘completely disagreed’ that the training contract be abolished.^[2558] Around 30 per cent of law students, and 27 per cent of para-legals, ‘completely agreed’ with abolition.^[2559]

The LETR Report recorded almost universal agreement among respondents that ‘some element of supervised workplace training must be retained’. It argued for more flexibility in allowing trainees to work and study concurrently. It suggested that ‘the burden should be on the regulator, adopting a risk-based approach, to identify why a proposed route should not be permitted if the relevant learning outcomes can be achieved’.^[2560] The report envisaged multiple routes to achieving the same outcomes.

The LSB responded to the LETR with a consultation setting out its own ideas for change. It stated that ‘a liberalised legal services market can only function effectively for consumers if there is a significantly more flexible labour market’.^[2561] Regulation of education and training, it said, should be outcomes focused and risk based.^[2562] The LSB proposed that training requirements be either role or activity specific, with some requirements applied by all regulators. An example of a common requirement was ‘areas such as professional principles and ethics’.⁸⁶

The implication of the LSB’s approach was a move to activity-based regulation. Training would then focus on the skills needed by the person delivering the services, and the risk involved, rather than on preparation of people for a specific and broadly based profession.⁸⁷ Regulation would focus on whether proposed routes met desired outcomes.⁸⁸

III.