Quality

7.8     The quality and international standing of English and Welsh lawyers is widely recognised and reflects well on LSET. However, the evidence demonstrates that there is little room for complacency. The challenge is to maintain and enhance quality and standards in a dynamic and price-sensitive market. LSET needs to support providers to achieve that aim in the public and consumer interest.

7.9     To ensure quality, LSET must focus on delivering new practitioners:

• with an understanding of and commitment to high levels of professionalism and ethics;
• operating at a consistently good level of quality and across an appropriate range, and
• in a manner that is sensitive to the cost to trainees and consumers.

Professionalism and ethics

7.10     The perceived centrality of professionalism and ethics to practise across the regulated workforce is one of the clearest conclusions to be drawn from the LETR research. Legal ethics was rated ‘important’ or ‘somewhat important’ by over 90% of survey respondents and was seen as a defining feature of professional service in the qualitative data. A majority of respondents thought that an understanding of legal values, ethics and professionalism needs to be developed throughout legal services education and training. Views differed as to what that might mean in practice. There was no majority support for the introduction of professional ethics as a new Foundation of Legal Knowledge for the QLD/GDL. This does not prevent a basis g for the study of professional ethics being provided at the academic stage. There is general support for all authorised persons receiving some education in legal values, as well as the technical ‘law on lawyering’.

7.11     Three other factors are also significant. The LSA 2007 regulatory objectives emphasise the centrality of the core ethical standards captured by s.1 LSA 2007 (‘professional principles’), as well as a wider notion, reflected across the objectives as a whole, of professional responsibility to society and to the rule of law. The development of OFR has also been seen to require a different approach to education and training in ethical values. Lastly, a greater emphasis on ethics would better align England and Wales to international practice, where a growing number of common law jurisdictions have included some element of ethics, professional governance/regulation and professionalism as part of both initial and continuing education and training in recent years. The impact in the US of the MacCrate statement of professional values, and the introduction of a ‘professionalism’ requirement across the Law Society of Scotland’s PEAT 1 and 2, are influential examples. The PEAT definition of professionalism is particularly commended as a way of capturing the wider commitments of legal professionals to society, addressing:

• the interests of justice and democracy;
• effective and competent legal services on behalf of a client;
• continuing professional education and personal development;
• diversity and public service;
• trust, respect and personal integrity.

Appropriate range of competence

7.12     The tasks of establishing, monitoring and enforcing outcomes and standards of competence are central to professional regulation, and education and training are one of the chief means used by regulators to achieve compliance with quality standards. Competence for the purposes of this report has been defined primarily as the cluster of knowledge, skills and attributes necessary for a person to function effectively in a legal role. Following Epstein and Hundert (2002:227), the report has sought to construct an adequate range of legal competence dimensions, which recognise it as a relatively fluid ‘developmental, impermanent, and context-dependent’ concept. This cautions against specifying competences in too great a detail. It also highlights the risk of focusing on basic, cognitive and practical skills at the expense of developing higher level and meta-competencies that characterise professional work. These high level capabilities include the development of composite behaviours like ‘professionalism’, critical thinking skills and capacities for self-evaluation and reflection. The latter are central to ‘reflective practice’ and need to be addressed throughout the continuum of formal training and on into CPD.

7.13     A central recommendation of this report is ensuring that competence is, so far as possible, standardised across the sector as a consistent baseline and at an appropriate level. The robust setting of standards is central to assuring quality and maintaining consistency in LSET, and the process by which standards are agreed has consistently been overlooked in past reviews of LSET. Chapter 4 therefore identifies the need for a collaborative process of defining competencies and setting standards in respect of those competencies. The level of qualification may also need to be revisited as part of that process, but as a general norm, the research indicates that any qualification for a person to act in an unsupervised capacity should be set at a minimum exit level of NQF level 6. A minimum level for paralegal functions is more problematic given the breadth and variety of roles. As a general principle, however, it is suggested that level 3 should be required as a norm.

7.14     A wide range of specific areas were highlighted as competence ‘gaps’ in parts of the sector. Key, general, areas are highlighted in the following sections, but these do not preclude the existence of other more localised or specialised needs (highlighted in Chapters 2 and 3).

Legal research and digital literacy

7.15     There was a consensus that legal research skills need to be addressed at a number of stages in LSET. Although most stages of training make reference to the need to develop appropriate legal research skills, there are concerns that these may not be sufficiently developed as part of the curriculum or tested as part of the specific outcomes at each stage. There were further concerns that research skills were not always taught well. (It is noticeable that the teaching of legal research on the then BVC was revised for this reason.) The intensity of the GDL course in particular has been seen to constrain the development of research skills in that course and more work should be undertaken to ensure that such skills are appropriately grounded. In reviewing outcomes for legal research, consideration should be given to the BIALL legal literacy and SCONUL outcomes statements.

Communication skills

7.16     Greater emphasis should be placed on communication skills throughout LSET.

7.17     Particular concerns were noted about the development of generic writing skills at the undergraduate stage, and that students may not be gaining sufficient experience of writing for a range of purposes and audiences. Doubts were also expressed about the consistency of writing and drafting training on the LPC and to a lesser extent during the CILEx qualification process. In the latter case the evidence seemed to suggest that at least some of the concern lay with the gap between the skills as taught in the classroom and as used in practice. Similarly, variations between house styles of drafting and opinion writing and the styles adopted by the LPC and BPTC were also mentioned, on the basis that the transition to practice required some unlearning and re-learning of those skills. ‘Writing’, in this context is not confined to spelling, punctuation and grammar but includes aspects of clarity, style, content and the critical thinking and analysis which inform the document drafted.

7.18     Standards of advocacy training on the BPTC and through the New Practitioners’ Programme delivered by the Inns of Court were generally well-regarded. IP attorneys and CILEx members all undertake additional training to obtain advocacy rights, whereas advocacy training for trainee solicitors is found in both the LPC and PSC courses and assumed to take place during the training contract. The advocacy components of the PSC and the LPC were not strongly endorsed, with the amount and quality of advocacy training on the LPC coming in for the strongest criticism. Some CILEx members in the online survey expressed a need for additional advocacy training.

7.19     A lack of training for the variety of advocacy settings (dealing with telephone and video hearings, tribunals, statutory adjudication, arbitration, mediation) was also highlighted by some respondents. More generally the growth in numbers of self-represented litigants was also seen as a particular challenge for which new advocates need to be better prepared.

Commercial and social awareness

7.20     ‘Commercial awareness’ is a composite attribute that includes numeracy, financial literacy, understanding the general commercial environment in which law firms and entities operate, as well as being alive to the business interests of specific clients, and a better understanding of the transformational role technology can play in delivering legal services. The evidence points to a clear need to make commercial awareness a more explicit feature of training at the LPC stage, particularly for those who are following a corporate and commercial pathway.

7.21     There was some evidence of a need for ‘social awareness’, equivalent to ‘commercial awareness’ for those operating in high street and particularly legal aid settings, involving the need for appropriate communication skills and empathy.

Management skills

7.22     The development of business and management skills, whilst widely acknowledged as important, is not well embedded across the formal LSET structures. The LETR research data highlighted the need to develop training in the context of client relationship management, project management and risk management as well as the higher organisational and leadership skills needed by lawyers taking on senior management roles in organisations.

7.23     The need to develop appropriate management and financial skills is particularly great in more vulnerable or high risk practice areas: sole practice, small firms, and publicly funded work. Collaborative and grass roots activities may be best provided by special interest and affinity groups, but there needs also to be more formal engagement by the regulatory and representative bodies to address the seriousness of the risks to the range and diversity of the professions. Mentoring schemes, good quality, accessible information, and (low cost or free) CPD activity addressing the risks of these forms of practice pre-emptively are all recommended. The relative concentration of BME lawyers in many of these more vulnerable areas adds to the importance of such support.[1]

Equality and diversity outcomes

7.24     There was strong support for integrating equality and diversity training into LSET from a range of respondents.

7.25     Equality and diversity training may be better embedded initially in appropriate parts of the professional training curriculum (eg, those focusing on professional communication and ethics) rather than as a discrete or generic topic. Additional training should also be required through CPD at appropriate career points, eg, where individuals take on supervisory, leadership or recruitment functions. Significant recruitment responsibilities (eg, chairing short-listing or employment interview panels; selecting candidates for work experience) should not be conducted by persons who lack equality and diversity training.

Initial and continuing competence

7.26     Much of the focus of LSET has been on establishing initial competence: a baseline of knowledge and skills that form the foundation for a legal career. Until relatively recently LSET has paid less attention to continuing competence being demonstrated throughout that career. Whilst initial competence is essential, it is not sufficient training for a working life that may span 40 or more years beyond qualification. This report recommends some transfer of the burden of competence from the initial to the continuing stages of training.

7.27     CPD seems to work in spite of rather than because of the current system. While there is high quality training available, and many practitioners take their commitments seriously, it is subject to the risks of ‘creative compliance’, doing the hours without learning much from them. There is a tendency to define CPD in terms of hours and courses. This can fail to develop informal learning and overlook the need for reflection and evaluation, which are central to the development of expertise. CPD needs to be both more flexible and more structured and useful. Moreover, in the majority of regulated occupations, workplace learning could be more closely linked to CPD as part of a more coherent system of lifelong learning.

7.28     Consequently the report proposes that approved regulators, where they have not already done so, should adopt a predominantly cyclical or benefits-led model of CPD, requiring participants to plan, implement, evaluate and reflect annually on their training needs and their learning.