Competence and specialisation

5.120     Education and training for solicitors and barristers have been based on establishing a broad foundation of knowledge, with opportunities to specialise subsequently often on the basis of post-qualification experience. Some of the newer occupations, such as licensed conveyancer and costs lawyer, start from a narrow field of competence. Paralegals may specialise as workers in particular fields and there is a perceived pressure on junior solicitors in particular to specialise earlier in their careers. In addition, stratification of work, unbundling of legal services and outsourcing of certain types of work have brought issues of specialisation to the fore.

5.121     As the 1996 ACLEC Report acknowledged, specialisation highlights a dilemma for legal education and training:

If the profession is to compete successfully across all the different sectors of the legal market, it will need to show that it can offer a higher quality, more customised service to its various consumers… [but] [t]he drive toward specialisation can have damaging effects both for individuals, who may be pressured into inappropriate career choice at very early stages in their education, and for the content of legal education and training in general.

ACLEC (1996:1.9-1.10)

5.122     There is also some concern that the conflict between what works for legal education and the individual professional, and what best meets the needs of consumers, is becoming more stark:

The system is failing because it tries to train the typical lawyer, when in reality there is no such thing.

LSCP response to Discussion Paper01/2012

5.123     This section considers what the LETR research has produced in understanding perceptions of specialisation and the necessary scope of competence, focusing particularly on vocational and post-qualification specialisation.

Breadth vs depth

5.124     For some specialist groups a broad base of study is seen as largely irrelevant,[1] and that is reflected in training structures that are relatively instrumental and focused from the outset. For solicitors and barristers, the tensions between breadth and depth tend to develop around the stage of vocational, or level 6/7, education.

5.125     The BPTC’s focus on core skills over domain content in some respects delays or diffuses the issue of specialisation, and the majority of qualified respondents felt that was appropriate. Students and pupils were more inclined to argue that the course was not specialist enough,[2] and might be better if the civil and criminal sides were separated.

5.126     Within the solicitors’ profession this debate often arises as a division between corporate and high street practice. This is also institutionalised in the split between bespoke and more general LPCs. In the LPCs organised by particular firms, the employers tend to be happy with the level of alignment with and preparation for their own specialist practice, and welcome further tailoring of the course to their needs. This was less apparent from the high street , where the generic LPC was felt to have placed too much emphasis on commercial practice, and largely overlooked areas of, for example, welfare law. This might be seen as a need to continue to recognise – or to enhance – different specialist versions of the LPC. But the underlying question remains whether the design of the LPC privileges too much breadth over depth, and whether it sufficiently reflects modern practice:

I think the components within the framework need reviewing in the light of what law firms do nowadays. It is not necessary to be able to do solicitors’ accounts or have to do a compulsory module in wills and probate and have to do a compulsory module in selling insurance products or whatever, which I’ve already forgotten about. It is more about being a legal business. It is more about relationships and dealing with clients and all those elements that we’ve talked about. So I would suggest that some things come out, and other things go in, that are more representative of the modern legal business.

Solicitor

The history of professional education in this country has …major failings. One is the notion that you can put ever more in and never take anything out. So it’s led to an LPC that is wafer thin on loads of topics when it should be going into depth…. [The other is] that those in the decision taking role, whoever they may be, educational, regulatory, can actually tell where the market’s going and plan for it.

Solicitor

5.127     Would the electives allow sufficient tailoring:

The diversity of the market is reflected in the number of options that can be undertaken in the second part of the LPC, so the core need not cover all practice areas. Given the increasing areas of law and the likelihood that specialisation will become the norm, the LPC cannot possibly cover all areas within the core, but within a greater number and availability of options.

Law Society response to Discussion Paper 02/2012

5.128     The concern that electives were not sufficiently in depth to support specialisation suggests the electives are not sufficient for specialisation, and the disaggregation of electives and core in the LPC has not freed up choice to the extent envisaged by the Training Framework Review Group.

5.129     Doubts about the added-value provided by electives or options were also echoed in a number of comments regarding the BPTC:

There was concern on the BPTC that the electives are so limited that it is hard to achieve relevant specialised training. This meant that any general grounding was undermined by the fact that it was not focussed enough to be sufficient.

YLAL response to Discussion Paper 02/2012

5.130     These views may be countered by the importance of pupillage as the first stage of specialisation for barristers, (as is the training contract for solicitors) and this seems to be clearly reflected in practice. Although pupillage can cover a number of  areas, it tends to be relatively focused and no significant concerns were conveyed about it under this head.

5.131     The issue of specialisation in workplace training arose also in the context of the training contract, where there is a tendency again for views to divide:

You learn different skills in different seats and I think the danger with specialising too early is that some people think oh I want to be an employment lawyer or I want to be a commercial lawyer. Once you actually get to practising that area of law you might then go ‘this is completely not for me’.

Trainee solicitor

… I think the great change from when I did articles was the requirement to know before you start what you want to do because that’s what we’re really saying to them. Don’t come here to find out what you want to do, we haven’t got the capacity for that. If you want to be a criminal lawyer, fine, come and be a criminal lawyer. If you want to be a family lawyer, come and be a family lawyer. But we can’t do all this mucking about, offering you choices here, there and everywhere.

Solicitor

5.132     It was also recognised that breadth of training was not just a matter of capacity for firms, but a function of structural change and stratification. This, it was pointed out, had implications not just in terms of the work available for trainees to do, but raised important longer-term policy and economic questions about how the cost of training was borne across the profession:

If we have to put the burden on specialist firms to provide generalist training, taking trainees doesn’t become an appealing prospect any more. That then puts the burden on firms like ours to train people and hope we retain them or actually train them for the good of the profession and they then leave. And that’s the commercial conundrum that we have.

Solicitor

Specialisation ‘post qualification’

5.133     Post-qualification specialisation in the legal services sector for the larger professions is substantially less integrated into a formal structured programme than it is in medicine or accountancy. Where there is a formal structure it involves the ‘badging’ of an individual or entity as having a specific competence, or meeting a level of service standard, or higher level of competence than non-specialist providers.[3] In theory specialist accreditation may be:

• individual;
• entity-based (eg, LEXCEL);[4]
• voluntary;
• compulsory (ie, where it controls access to a market segment).

5.134     In its broadest sense then a title giving access to reserved legal activities is a form of specialisation; but the primary concern is with specialist accreditation within or across titles, such as the ‘Conveyancing Quality’ schemes of both the Law Society and the Society of Licensed Conveyancers, and QASA.

5.135     Distinctions also need to be made between three different forms of specialist accreditation: an affinity or interest group, which may support training and development, but plays no direct role in evaluating or assuring quality; those groups or organisations where accreditation does perform an initial quality assurance function; and those where it performs both an initial and continuing quality assurance function. The focus here is on the latter two categories which assess or assure quality.

5.136     The majority of these ‘specialist’ schemes across the legal services sector are voluntary. They should be distinguished from mandatory schemes, which can also provide consumers with information, tools for choosing providers, and some evidence of enhanced standards. They are not a substitute for minimum standards of competence (LSCP, 2011:4).

5.137     There was generally a groundswell of support for specialist schemes amongst solicitors:

Competence in areas of specialisation should be paramount. If a lawyer holds themselves out as having a particular skill then it should be backed up by a professional accreditation/diploma.

Solicitor (online survey)

5.138     There is a tendency to distinguish specialist (voluntary) accreditation from general accreditation, which might imply complete re-licensure:

Accreditation following qualification should be only for extensions from the ‘norm’ of practice and certainly should not be required, for instance, in advocacy at Magistrates Courts nor in relation to Conveyancing or general Commercial work. Those are the bedrock of training and the very basic rights of a Lawyer are linked to them.

Solicitor (online survey)

5.139     There was very little interest in such schemes amongst the Bar, aside from QASA, which received support in terms of the underlying principles, despite more detailed concerns about scope or implementation. This largely reflects the extent to which barristers, and members of the other, smaller, professions are fundamentally specialist, and might see little scope or value in further definition of a sub-specialism. A number of existing schemes are open to both solicitors and CILEx members. Most of these schemes are individual rather than entity-based.

5.140     It is recognised that accreditation has the potential to be extremely valuable for consumers:

Accreditation by its very nature promotes high standards in legal service provision and ensures that consumers are easily able to identify legal practitioners with proven competency in given areas of law and therefore protects the public interest.

Central Law Training response to Discussion Paper 01/2012

5.141     The review of the Specialist Accreditation Program of the New South Wales Law Society (Armytage et al, 1995), which was built on a competence-based assessment strategy, indicated that such assessment generated positive outcomes for both the firms and consumers. Sixty-two per cent of successful candidates in the programme (including a high of 79% of those in Wills and Estates practice) reported the accreditation process had influenced their practice in a variety of ways, including developing new office procedures, increased awareness of precedents, and better understanding of the law and practice in their area. Focus groups with consumers highlighted the effect of the scheme in both raising client expectations, and increasing their perceived level of satisfaction with the service received. By contrast, however, the extent to which accreditations are actually understood by English and Welsh consumers is at best doubtful (LSB, 2012; LSCP, 2011).

5.142      Under the right conditions it seems that accreditation can achieve positive outcomes for consumers and professionals alike, but it can also appear to offer assurances of quality where the evidence is limited. There are risks where schemes are owned by the groups they are assuring, that tensions may arise between public awareness, marketing, and quality assurance functions.

5.143     A substantial number of specialist schemes are run by the Law Society (see Annex II). These were reviewed in 2010/2011. The current framework was updated in March 2013. Each scheme has its own particular features, though there is a generic set of criteria, which includes the statement ‘Members of each scheme will have demonstrated, through an assessment process, that they are competent to undertake work in a particular area of law’. The assessment process is described thus (Law Society, 2013h):

Your application will be sent to a Law Society appointed assessor, who will mark your application against the relevant scheme competence criteria. The assessor will produce a report for the Law Society giving a recommendation based on the mark you have achieved.

If the assessor considers that any or some of your answers given in response to any questions are contradicted by any other answers or materials provided, they may refer your application back to you for clarification.

If the assessor identifies answers which are fundamentally wrong in law and/or practice, or which raise ethical and conduct issues, a decision to refuse your application may be taken irrespective of the overall mark obtained.

5.144     There can be an interview (ie, a viva) and second marking (all fails are second marked). Membership is specifically that of the individual not the entity. CPD requirements can be imposed as a condition of a scheme and membership is normally for 2-5 years. Assessment ranges from essay, to case reports and records of experience, to skills assessment. There appears to be a common requirement for some form of statement of competence or competence standard but the articulation of the standard and level of detail varies substantially between the different schemes:

There is no consistency of approach and no real understanding of what each of the accreditation schemes is trying to achieve. For some accreditation schemes there are no common assessments with each assessment organisation setting its own standards and little or no monitoring of how those standards are implemented. The current approach to re-accreditation is in disarray. For immigration work this is by re-examination of legal knowledge, yet for criminal lawyers the proposal (currently being consulted upon) is for attendance at a CPD course – given that 5,000 criminal lawyers were passported into the current regime and have never had their skills tested – how is attendance at a course accreditation of an individual’s skills in representation at the police station or advocacy? For other specialist accreditation areas a portfolio of work has to be produced, for another attendance at the three-day non-assessed course is part of the criteria.

Other interested person (online survey) [5]

5.145     The LSCP study of 13 quality schemes concluded:

There are few practical checks on technical competence, little lay input into the design and operation of schemes and minimal collection and use of consumer feedback. Moreover, schemes are not validated and so offer no proof that they are delivering on their quality claims

LSCP (2011:1)

5.146     There appears to be considerable scope to develop and exploit specialisation in a more coherent and developmental way, for example:

We would envisage that the specialisms we have referred to … would be developed under the aegis of specialist ‘faculties’ as in other professions such as Medicine, Engineering and Accountancy. … There is a role for the Regulator in prescribing the content and learning methods for specialist faculty admission …

BACFI submission

5.147     In conclusion the extent to which post-qualification accreditations currently provide a clear or consistent basis for enhanced competence is questionable. Specialisation can perform different functions and can be developed at different stages of the training and quality assurance process. The market-driven moves towards specialisation, and the recognition of specialisation, currently extends through the earlier stages of qualification and into post-qualification. This is most marked with the solicitors’ profession, the broadest-based of the legal services professions. It is possible that the future may lie with more modularised qualifications and accreditations. It is therefore proposed that suitably robust specialist accreditation should be encouraged, and form a substantial part of any revised CPD framework.