23 Nov 2021
One legal profession in part of one small island is changing its qualification process: so what? The answer is, I think, in understanding what opportunities it might give to existing CIArb members and their colleagues.
Broadly speaking, there are two approaches to qualifying as a lawyer, globally, although there are some hybrids and variants including those recruiting direct from school. One approach relies on a law degree followed by a self-standing bar examination administered by the state or by the local professional regulator. The other involves a mandatory and often postgraduate practice-oriented course whose assessments may be set by the course provider, the professional body, or a combination of the two. Work experience of some kind is embedded in the practice-oriented course or required as a separate component.
Solicitors, one of the eight regulated legal professions in England and Wales, albeit the largest numerically, are moving from the latter approach to the former, whilst retaining the two-year work experience component that is dear to the hearts of the profession. This will begin this September, although there are substantial transitional provisions. In this article, I consider two aspects of the new regime of the Solicitors Regulation Authority (SRA): the examination and the work experience requirements.
The Solicitors Qualification Examination (SQE)
The examination will be in two parts. SQE 1 is a closed book multiple-choice test on a list of areas of law and practice that have been, historically, covered in the initial law degree (LLB) or its equivalent and in the existing practice-oriented Legal Practice Course (LPC). It includes knowledge of “Arbitration, mediation and litigation as an appropriate mechanism to resolve a dispute”. Procedural knowledge is, as in the mandatory components of the existing LPC confined to civil litigation, excluding ADR.
SQE2 then assesses client interviewing (sometimes known as counselling); advocacy, case analysis, legal research, writing and drafting through case files and role-plays. It does so in the contexts of criminal and civil dispute resolution, property (land), wills and probate and business law. Ethics pervades both examinations. The content of SQE 2 and the fact the whole assessment is not based around multiple-choice questions is often overlooked by commentators.
Anyone who has taken the Qualifying Lawyers Transfer Scheme assessments for re-qualifying foreign lawyers will recognise the design. What is important, I think, is to acknowledge the scope and limitations of this design in particular. No assessment in simulation can of course, replicate or necessarily predict how a professional will behave in the messy, time-poor environment of the workplace, nor how they will respond to pressures from clients, opponents and colleagues. It is fair to say that the SRA has not claimed that the SQE will do so. The assessment is intended as a floor, therefore, rather than a ceiling. Initially, and as part of the rationale for the new system, the SQE was to be applied universally, but it is now apparent that exemptions will be made for some members of some British and foreign legal professions and possibly for individuals on a case-by-case basis. The list is currently small but it seems likely that it will expand, at least for common law countries.
The SQE purports, however, to be an assessment of the content and level of the SRA’s competence statement for the point of qualification. The webpage for each assessment maps each of the papers and roleplays against it. Whilst the SQE, in including assessment in client interviewing and advocacy, goes further than most bar examinations in attempting to assess practice, the idea that it assesses in detail each individual component of the competence statement is illusory. There are, for example, competences relating to ongoing activities such as “Keeping colleagues informed of progress of work, including any risks or problems” which cannot be assessed in a one-off assessment. Compromises, whether principled or pragmatic, have also been made in assessment of advocacy and negotiation. Although solicitors will continue to acquire rights to conduct trials in the lower courts on qualification, the witness examination competence is not assessed. Negotiation is assessed in SQE 2, not by engaging in the to and fro of an actual negotiation (or mediation) but “in either interview and attendance note/legal analysis and/or case and matter analysis and/or legal writing”.[1]
As the competence statement is pegged to the point of qualification, one might expect that it, or at least SQE 2 would be taken at that point, that is, at or close to the end of the two-year work experience period (of which more below). For those taking the apprenticeship route, that is the case, because that is the way in which all UK apprenticeships are constructed. For those taking the more conventional route beginning with an LLB or law conversion course, however, the only sequential rule is that SQE 2 cannot be taken before SQE 1 has been passed. There is already evidence that many employers will require both assessments to be taken or passed prior to the two years. This may be to avoid the business interruption of candidates requiring day release for preparatory courses; or the risk of employing someone for two years who then fails the assessment. Clearly, therefore, the level of competence measured by an early SQE assessment may have degraded – although of course it might have improved – during those two years.
This flexibility of timing also, of course, rather brings into question the purpose of the two-year period of work experience. The SRA comments that using the period to prepare for SQE 2 might reduce the time and expense of preparatory courses. As the ambit of SQE 2 is considerably wider that the current requirements for the period of work experience, and there are known challenges in using the period to gain skills in advocacy, negotiation and client relationships, it seems unlikely that work experience alone, unless very carefully configured, will be enough to prepare candidates adequately for the SQE. There may, however, be experienced paralegals and foreign lawyers, or determined autodidacts, who are able to prepare for the SQE independently. It seems likely, however, that most will rely on the developing competitive marketplace in preparatory courses. An LLB will not be required (though a degree in some topic or its equivalent will be). To some extent this replicates the existing place of the LLB in England and Wales, explicitly “foremost an academic qualification and [which] provide[s] a route to a range of careers, the legal profession being just one of them”, such that some employers already actively recruit, and possibly prefer, graduates of the one-year law conversion course. SQE 1, it should be recalled, includes topics that are not found in a conventional LLB.
Some of the SQE preparation courses will be designed and delivered by experienced LLB and LPC providers, leveraging expertise, staff and materials. Others will be new entrants (or new entrants in the UK market). It would not be impossible for a large organisation to commission and deliver a bespoke course for its own personnel, as several City firms already do for the LPC. Individual coaching, perhaps along the lines of the US law office/law reader model, would be possible. The challenge, particularly for those with limited financial capital, will be making the cost/benefit analysis, at least in the early years of this competitive market, when choosing courses.
Qualifying work experience (QWE)
Most legal professions, globally, require some kind of work experience prior to qualification, though how it is organised, by whom it is provided and supervised and where it can take place differs. Some regulators also prohibit lawyers from working in particular fields, or in sole practice, for a period after they qualify. In recent history, the work experience requirement for Anglo-Welsh solicitors has been constrained to “training contracts” in authorised organisations, providing experience in at least three areas of law and in both contentious and non-contentious work. Although creative methods have been used to achieve this, including secondments and simulations, the fact remains that allocation of work experience is by competition in the labour market. There are more people wishing to become solicitors than there are training contracts, and this can prejudice the less portable, and those from disadvantaged or minority backgrounds. The model is also susceptible to exploitation, with aspiring solicitors employed, possibly for years, as paralegals, with the offer of a formal training contract dangled, but in practice out of reach. Those who fail to obtain such employment and are therefore in limbo may give up, accept relegation to a lower-paid and less well-defined paralegal job, or move sideways. The Chartered Institute of Legal Executives has consciously developed a route into the legal executive profession for those trapped in such “paralegal purgatory”.
It is not always clear what the basis is for the British attachment to a mandatory requirement for learning in the workplace. Is it a learning environment; a place for socialisation or a period of humble servitude that must be endured for the sake of joining the profession? Clearly, a positive workplace, with good mentoring and support is a strong learning environment, in which classroom learning can be contextualised and focussed and a solid professional and ethical identity can be developed. A poor experience in a toxic workplace is iniquitous and damaging both to the individual and to the profession as a whole. Authorisation of organisations might be thought to guard against the worst excesses of the latter, and permits regulatory quality monitoring, but cannot of itself monitor the experience of thousands of trainees each year.
The new model does away with regulatory prescription and monitoring in order to widen the range of employers (and voluntary positions) that can be used to satisfy the regulatory requirement. As long as the role involves the provision of legal services and allows the trainee to develop “all or some of the competences” (even if they have already taken the SQE) it is acceptable. A candidate will, indeed, be able to accumulate experience, paid or unpaid at up to four different organisations, although there must be some question about whether short placements in, for example a student clinic, will turn out to be de minimis. There will no longer be a need to, for example, be seconded, to capture a third area of law or contentious work, as those constraints have gone. There is no need for the period, taken in its aggregate, to cover all of the competence statement. There must be an Anglo-Welsh solicitor within reach, however, to sign the work experience off. That sign off is, however, only as to completion of the relevant time served and that the candidate has, in effect, behaved themselves. There is no element of assessment of what is learned, as that has been delegated, for regulatory purposes, to the SQE. The limited nature of what is being certified will, therefore, make it difficult for a solicitor to refuse a sign off. The widening of the ambit, however, opens up the possibility of QWE being acquired by CIArb members in in-house environments, in government and quasi-governmental organisations and, where this is feasible, in other professional firms where legal advice is given provided a solicitor can be found inside or outside the organisation, to monitor and sign off.
Conclusion
All legal profession qualification routes have bottlenecks of some kind. These may be in accessing university; or a vocational course, passing a bar examination or, as here, obtaining the requisite work experience. It is not yet known how the SQE will act as a filter, even taking into account its provisions for multiple retakes, or the effect it will have on the diversity of the profession.
QWE loosens up the current bottleneck in obtaining work experience, but may well result in an over-supply of qualified solicitors. They will at least have a title, but there will not be jobs for all of them. Setting up in independent practice at the point of qualification is now possible, but entails a temptation to cut corners to acquire clients and service educational debt. Because of the oversupply there is already a buyer’s market for paralegals. There have been examples for some time of solicitors being asked to remove their names from the roll in order to be employed as paralegals (otherwise they must have and pay for the annual practising certificate) and there seems no reason why this should not increase in the new regime. Talk of the new model as creating a “two-tier” profession reflects this fear but is disingenuous, as there are already multiple ways of satisfying the existing requirements, and status of university or whether one has CILEx qualifications, status of training organisation and other aspects of social and cultural capital are already aspects of the competitive job market.
In the professional press, comment by solicitors on the new proposals has often referred to the importance of learning in the workplace, or to solicitors’ examinations of the past. I have considered methods of legal qualification in a number of countries in the course of my career as an educator. Each is, of course, distinct to its local culture, its concept of what law is and what lawyers do, and to the available resources for education and assessment. None is perfect and neither is the SQE and QWE model. Indeed, the SQE is, in including skills assessments, unusually ambitious for a terminal bar examination, and that carries risks. Conceptually, however, the shift is, as I indicated at the beginning of this article, from one model of legal professional qualification to another. What is important, in my view, is that we recognise where it opens up opportunities for developing and supporting young lawyers; acknowledge – and, if necessary, remedy - its lacunae, and monitor it for its effect on the overall diversity of the profession.
Jane Ching
Professor of Professional Legal Education, Nottingham Law School, Nottingham Trent University, UK, member of the CIArb education and membership committee
[1] Negotiation appeared in the LPC when it began in 1993, but was subsequently removed.