Red LETR day… LETR Symposium, day 1

by Paul Maharg on 10/07/2012

Liveblogging the LETR Symposium at the Lowry Hotel, Manchester.  We (the research group, but especially Julian) have been working on this two-day event for the past six months or so with the SRA and others, so great that it’s finally rolling.  More information on the programme here.  The event was introduced by our Steering Panel Co-Chairs, Sir Mark Potter, and Dame Janet Gaymer.

First up, the initial plenary panel with Professor Julia Black and Steve Mark, Legal Services Commissioner for New South Wales, Steve first.  He commented on globalization, the regulation of cross-boundaries (eg the cross-federal approaches in Australia), the transnational legal services markets, the distinction between cross-national, multi-national and global law firms — crucial distinctions and, as Steve pointed out, governments often got in the way.  In his Office he tried to identify purpose in regulation.  The regulatory torrent of legislation was a problem, and didn’t necessarily support the enhancement of legal ethical values.  His Office he pointed out, cdn’t reduce complaints against lawyers, only lawyers could do that, and his role was to engage in an educational process with lawyers and the public to ensure that that happened.

ABS, he said, is big for us, but they’ve been around for him for 11 years or so.  Early predictions were apocalyptic, but the apocalypse hasn’t happened.  Instead, his role was to education the public and lawyers about ABSs and how they operated.  In 1994 multi-disciplinary practices were allowed, with 51% owned and managed by lawyers.  This worked till 1999, when a Competition Policy Review came up with the finding that the 51% rule should be abolished.  A lot of models developed re legal services that hadn’t been present before.  According to the relevant Act, each firm had to have a solicitor director, having all the duties that a solicitor has to the court, but also directorship duties, eg appropriate management system that would embed ethical behaviour in the firm.  There is no document that describes such a system, he pointed out.  Steve therefore worked with the profession, everyone working in legal services, and came up with 10 issues , eg solicitor’s lien, client files, etc.  Described in one page per issue, no big adminfest, kept it lean and mean.  So his document was setting targets, for all sorts of practices (including the solicitor who had only one client — the World Bank…).  His aim, based on this document, was to improve practice — not to shut down solicitors, though that would be done if it were in the public interest.  Carrots, before sticks, was his approach.

He also tried to make regulation as simple as possible.  Eg 37 pages of legislation reduced to three paragraphs, on costs regulation.  The profession gets lost in process and forgets purpose.

Re tertiary education — how do we get cradle to grave re lifelong learning?  In CPD, NSW has 10 hours (cp E+W 16).  Took two years to harmonize CPD regulation across the jurisdictions in Australia.  Of the 10 hours, three are mandatory (took 15 years to achieve), one hour on mandatory ethics, one on professionalism, one on business acumen, running a business, etc.

Regulatory objectives — he liked these.  But a warning: the legal profession gets very focused on the concept of competition.  Competition is usually used by govts to drive down price.  There’s not a lot of evidence that it does; but what does it mean to a professional?  Is the professional competing on value or competing on price?

Next up, Julia Black.  LETR, she said, was a sensible initiative.  It was useful to focus on ethical behaviour: professionals are important carriers of social norms.  Cf lawyers working in the areas of education, healthcare, etc: they carry their values with them.  LET instilled a core set of values, no matter where the professional might end up working.  She asked, what are the aims of LET?  Who shd provide it?  What standards of competence shd that LET arrive at, or attain?  Answering these questions, will ensure that regulation will be appropriate.  Don’t put regulation first, therefore: work out the answers to these questions first, then work out the regulation.  Interesting point!


Skills?  She outlined six: intellectual skills — eg developing clear and cohere argument.  Substantive legal knowledge.  Technical legal skills — eg understanding interrpetation in statutes, drafting document.  Commercial skills, including client awareness.  Practical office skills, eg taking minutes.  Ethical awareness.

Where shd learners learn these skills?  She simplified down to on-the-job and off-the-job.  In terms of all skills, both cd be employed, but there tended to be a leaning, one way or the other.  She wanted to move away from a sequential process.  So learn then earn, or learn AND earn at the same time?

This is about mechanics and process, though.  What are we trying to achieve, what standards of competence are we trying to attain?  Currently, there’s a plethora of pathways, regulation and non-regulation routes, etc.  Suppose we did start anew — what wd it look like?

  1. Should there be a common minimum threshold of competence and ethical awareness?  This has clear implications for the Legal Services Act.  There needs to be a consensus on this.
  2. Should the professions be able to offer qualifications over & above the minimum? And only the group who attains these, can do only specific activities?

In asking these questions there are principles to think about.

  1. Qualification shd be divorced from a course. Restricting qual. also to a course is restrictive.  Assessment shd be freestanding.
  2. It shdn’t be in the monopoly of any one entitled conferor to confer that privilege of practice.  Why?  Cos there’s a need to recognize the multiple needs of the LET market.  Legal complexity is not necessarily related to the work of a transaction.  Flexible qualifications are critical.  Provision of the scaffolding, and the ethical seam running through it all, is also critical.

Two final comments.  When shd regulation come in?  In assessing the standards, but not necessarily how the standards are worked out.

Entity-based or title-based educational achievement?  There isn’t a dichotomy, really.  Activity based or title-based?  She argued for a divorce between the two.  There doesn’t need to be a tension between them.

Reserved activities?  There’s no sense in them at all.

Two very good presentations…  Next up will be the LETR group ourselves, so no coverage of that.  Will put up slides after our presentation.

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