The Future of Ethics in Legal Education and Training

The structure of legal education and training has remained virtually unchanged since the Ormrod Report in 1971. The ACLEC first floated the idea that undergraduate legal studies should contain some ethics in the 1990s.

¹⁹³ ibid, rec 6.

¹⁹⁴ ibid, at para 2.73.

¹⁹⁵ ibid, at para 7.10.

¹⁹⁶ ibid, at para 5.91.

The first Law Society report thoroughly reviewed the arguments for the citing of ethics and repeated ACLEC’s suggestion that outcomes be developed for the under­graduate stage.^[1014] The second Law Society report outlined a detailed prospectus for a subject and outlined why it was important that legal ethics become a core subject if the Seven Foundations were retained.^[1015] The LETR Report ignored both reports. Consequently, it did not take this particular debate further forward. In fact, it returned to square one, suggesting that outcomes be developed.

Both the partnership model and the concept of the liberal law degree were implic­itly endorsed by the LETR research report. This left the regulators who sponsored the report, and the LSB, which promoted the review, with difficult decisions. Did they accept the conclusion that only minor systemic adjustments are needed, or embark on more radical plans? If the latter, did they accept the suggestion that some ethical outcomes be added to the joint announcement or look to make more fundamental changes?

The LSB appeared disinclined to accept the direction, process or pace of change implicit in the LETR Report. It issued a consultation in which it proposed issuing statutory guidance to all the approved regulators under the Legal Services Act 2007, section 162. This was intended to take the form of five outcomes the LSB considered would deliver greater flexibility in the education and training markets, with positive impacts on access, cost and flexibility.

---- education and training requirements focus on what an individual must know, understand and be able to do at the point of authorisation;

---- providers of education and training have the flexibility to determine how best to deliver the outcomes required;

---- standards are set that find the right balance between what is required at entry and what can be fulfilled through ongoing competency requirements;

----- obligations in respect of education and training are balanced appropriately between the individual and entity both at the point of entry and ongoing; and education and training regulations place no direct or indirect restrictions on the numbers entering the profession.^[1016]

At this point, the SRA had responded to the LETR Report with a policy statement and consultation. This conceded that regulation had previously been ‘overly preoccupied with detailed educational design and inputs’.^[1017] It continued by promising that the SRA intended to ‘move our attention from prescribing the educational “how” and to focus instead on assuring standards of competence against a framework which is fit for modern legal practice’. This referred to the proposed move towards flexible pathways to qualification where solicitors would only need to show ‘the day-one skills, knowledge and attributes that a new solicitor must possess’.^[1018] The other two commitments were related to continuing education and removing unnecessary regulation.

The SRA plan is, therefore, to permit much greater flexibility as to how competen­cies are acquired. This means that they will no longer be requiring law degrees, or their equivalent, LPC and training contract. The ‘unnecessary regulation’ refers to the regulations supporting these requirements. One example cited is the need for a certifi­cate of completion of the academic stage before progressing to the vocational stage.

The consultation refers to the EU case Morgenbesser v Consiglio dell’Ordine degli avvocati di Genova.^[1019] This requires regulators to assess the competences of part- qualified EU national lawyers holistically, by evaluating their abilities, knowledge and competence when admitting EU nationals to English legal professions. This suggests the introduction of the qualified lawyer transfer regime, previously a much maligned necessity implemented in order to accommodate EU law.

The removal of qualifying requirements accommodates the LETR Report sugges­tion for development of higher level apprenticeship qualifications as a non-graduate pathway into regulated professions. The SRA welcomed such a development but considered it was for employers and education providers to propose the pathways. The SRA conceived its role in the process to be the provision of mechanisms for individuals seeking qualification through such routes to demonstrate that they meet a prescribed standard.^[1020]

One of the implications of the SRAs plans was a move to centralised assessment of standards at the point of qualification as a solicitor. No other system would meet the requirement of demonstrating consistent achievement of outcomes across the system. The SRA claimed that the assessment regimes established to test overseas lawyers knowledge of English law and procedure demonstrated that outcomes could be satisfied by a rigorous assessment-based process.

Both the BSB and IPS provided a less detailed indication of their intended actions following receipt of the LETR Report. The Bar referred to changes to education and training it had made as a consequence of the Wood Review. It indicated six areas for future work. These were to develop a competency framework, revise the train­ing regulations, establish an outcomes-focused approach to Continuing Professional Development, publish relevant regulatory data, improve access routes to the profession and work with other regulators in looking at academic stage requirements.^[1021]

The ILEX Professional Standards response welcomed the endorsement of outcomes- focused assessment of competence, more constructive and meaningful ways to maintain competence through Continuing Professional Development, and support for thorough training in ethics and professionalism in the curriculum. It suggested that it would focus particularly on supporting diversity by providing alternative routes to qualification.^[1022] All of the regulators therefore endorsed increased use of outcomes, although not necessarily in the same areas of work.

Any concrete scheme to revise education and training is likely to be controversial. It is difficult to see how outcomes currently achieved and assessed incrementally over up to seven years of education and training, can be adequately assessed at a single point pre-admission. A single, pre-qualification, day one outcome assessment would be con­troversial and administratively burdensome. More important, the quality of provision might be difficult to assure if the primary focus was on the outcome of a long education and training process. There would be a fear of providers offering shorter and shorter routes to qualification and a ‘race to the bottom’ in terms of quality.

Twining, usually a farsighted and progressive member of the university legal estab­lishment, observed that most agreed that ethics and values should feature at all stages of legal education and training. How and when to do it is problematic, he said.²⁰⁶ He argued that ‘[o]ne must distinguish conceptually between personal morality and public ethics, positivism/non-positivism, common law values, professional integrity, and disciplinary guidance, regulation and enforcement’.²⁰⁷

Twining argued that much of the relevant material could feature in theory and philosophy courses. His question, ‘is this too radical?’, was posed in relation to his sug­gestion that philosophy might benefit the vocational stage and CPD. It applies equally to almost any proposal for legal ethics in education and training. Unfortunately, such ideas occupy a different universe to those likely to be on offer. Requirements for eth­ics in education and training will probably become pragmatic and sketchy rather than aspirational.

IX.