LAWYERS OF THE FUTURE
A consultation paper by
The Law Society of Scotland
directed towards a Foundation Document for the
future development of
Professional Legal Education in Scotland
Introduction
1.1The structure of education for professional legal practice has changed and developed markedly over the past 25 years. However the Society has been conscious for some time that a radical consideration of the principles which underlie that area has not recently been undertaken. It believes that it is important periodically to try to stand back from the actual current processes in order to be assured that the structure continues to be appropriate. This consultation paper sets out the Society’s preliminary consideration on the major issues and aims to involve all those with an interest in the debate in relation to the focus and direction for the future for legal education for professional legal practice in Scotland.
1.2Scotland is a modern society. It has a legal system and tradition of which it can with justification be proud. Because the law occupies a pivotal position in society a modern society cannot function without a correspondingly modern and flexible legal system, and this must include a modern approach to the education and training of lawyers.
1.3In Scotland responsibility for the education and training of lawyers lies principally with the professional bodies. There are however groups and institutions beyond those bodies, many of which have a substantial and legitimate interest in the form and structure of the education and training process. The Society has always sought to discharge its functions in consultation with those groups and institutions. The debate which the Society seeks to stimulate should be as broad as possible and should include all those groups and institutions and others who wish to contribute.
The purpose of the consultation process
2.1The Law Society of Scotland is charged by statute with the responsibility for the process which leads to the admission of satisfactory applicants as solicitors in Scotland. In fulfilling this responsibility, the Society is empowered to make regulations for:
- practical training;
- attendance at a course of legal education; and
- the passing of examinations.
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Foundation Document
2.2In addition the Society is expressly required to be satisfied that each applicant for admission is “a fit and proper person to be a solicitor” (Section 6 of the Solicitors (Scotland) Act 1980).
2.3This consultation paper introduces a draft document, the purpose of which is to set out a vision and to be a foundation for the future in the field of legal education for professional legal practice. This Foundation Document seeks to identify the principles lying behind a comprehensive structure for legal education for professional legal practice in Scotland. It goes on to suggest the principal goals and the specific objectives which we think should guide the development of professional legal education in Scotland.
2.4The Society recognises that over the years the shape and content of legal education for professional legal practice has been considered by a number of different bodies and institutions. It also recognises that a number of initiatives are currently being developed. The shape of the LLB degree is changing, as is the shape of the Diploma. The other current components of professional legal education are also under review with work being done in relation to the Professional Competence Course and also in relation to the traineeship itself.
2.5The Society believes however that it is essential that there be a coherent statement of principles which should govern developments in this area. Hitherto, bodies with separate interests, whether professional, academic or otherwise, may have outlined their aims in relation to their particular areas of responsibility, and the nature of the exercise is such that there will be constant activity in this area. This initiative, however, by the Law Society of Scotland is an attempt to draw together all those interests in a single statement in the development of which all those with an interest can contribute and, the Society would hope, eventually subscribe.
A Foundation Document
3.1The legal profession faces profound questions including questions as to the nature and extent of its accountability. It is at times such as these thatquestions arise as to what place a legal profession has in society at large.
3.2If the Law Society currently has a responsibility as gatekeeper for entry to the profession, then questions necessarily and properly arise as to whether that should be so, and if so, on what terms? But in any event it seems clear that society at large will wish to regulate the provision of legal services in future. There will remain the issue of what is the nature of the activity which is to be regulated. Such issues indicate a larger debate than that sought to be stimulated by this paper. But such a debate also carries with it the need to consider what society does wish from a legal profession, and that in turn will involve looking at what processes and what content is involved in the education and training of those who would practice in a legal profession. It is in addition currently undeniable that there is a concern as to the focus of legal education and training. But even if that were not so, those charged with the responsibility for supervising entry to a profession should always be looking to improve their performance and thereby secure the best possible standards within that profession.
3.3The titleFoundation Document represents simply what it says. It is the attempt to draw all the relevant elements together in order to identify basic principles. It is the foundation on which the structures and processes of legal education should be built. Such a document should be comprehensive, easily understood and sufficiently flexible to be able to deal with changing circumstances.
3.4The draft document is attached with this paper, and the Society would welcome opinion on the general approach suggested by it.
Why now?
4.1The functions fulfilled by lawyers in a democratic society are fundamental to that society’s health and well-being. Numbers of those in practice are relevant as reflecting continuing demand for legal services. The number of those in practice in Scotland has been steadily increasing[1]. The numbers of those training in professional legal practice have also increased over the past ten years by around 20%[2] although it has to be said that, paradoxically, the numbers of admissions do not appear to reflect that trend.
4.2Perhaps of more importance however is that the particular requirements which society makes of lawyers have changed rapidly over the last 25 years. There has been a revolution in business practice and communications within the last 10 years - e-learning and e-commerce are simply examples of the pressures and causes in that process. At the very least, lawyers in training today can expect to work in the future in quite different contexts and circumstances to those which apply at present. The Society is conscious that many intending lawyers who are undergoing their education and training at the time of the publication of this document are likely to be in practice well into the second quarter of this century. We have to be alive to the need to plan now for that rapidly changing future in which we can be certain, if of nothing else, that there will be a continuing requirement for those trained in legal practice.
4.3As legal practice becomes more complex and demanding and the place of law in society itself more significant, so it becomes more important to be clear as to the fundamentals of legal education. The Society believes that it is essential that that fundamental statement has to be undertaken. The Society would welcome comment on the issue of when such an exercise can be addressed.
The elements of a Foundation Document
5.1The principal focus of a Foundation Document, as a statement of a vision for the future, must be the principles which will underlie and shape the structure and content of the professional legal education system. It will be those which will shape the content of such a document, and it is those principles around which the options for delivery will revolve. However, those structures and the content of the processes are likely to vary from time to time as circumstances change. A Foundation Document must be sufficient of a living document in order to be able to meet the challenges which those changing circumstances will disclose.
5.2For the purposes of this consultation paper a draft Foundation Document has been prepared and is attached at Annex A to this paper. That will allow discussion upon the emerging preferred option. However it is right at this stage to set out the principles which are relied on since those are at the core of the issue, and it is also right at this stage to point to some of the other key elements which will arise.
5.3The most important element in a Foundation Document must be the setting out of the values and aims involved in legal practice. What do we want lawyers to be in terms of their core values and what will we say should separate the legal practitioner out from other professionals? What is it that we say should be regulated? What are we training people to be?
A statement of values
6.1It is necessary to be clear as to the values which are at the core of a legal profession, and then proceed to those which are more clearly referable to the area of legal education. These are not peculiar to the practice of law in Scotland or even in the United Kingdom. We do not often express them, but they are at the centre of professional practice, and the growth in the size of the legal profession[3] suggests that society at large values them.
6.2At the core are the principles of independence, competence, integrity, and the promotion of justice and the rule of law.
6.3It is also essential to remember that a legal profession should exist to serve the needs of society and of the public at large in relation to the delivery of justice in society.
6.4The Society firmly believes that these principles are central to professional practice and to its role as a regulator. It would welcome comment.
Fundamental principles for professional legal education
7.1The Society believes that the devising of a scheme for professional legal education can only be achieved by way of a partnership among all those who have an interest. The list of those with such an interest is potentially large but must include government and legislature, users of legal services, the legal profession (including those wish to enter the profession), legal education providers and critically the public at large. In developing and reviewing any scheme the Society will actively encourage collaboration and effective sharing of resources between those groups and interests.
7.2While a legal profession must foster the culture and values of its developed legal tradition – recognising its distinct nature, based on principles of law, and its adherence to high ethical standards – it must be able to align itself to the changing needs of legal practice. The training programme must be capable of adapting to reflect the changing profile of practice, and the requirement for different legal professional specialisations.
7.3A legal profession is part of society at large and it has responsibilities which flow from that including the responsibility to ensure open access for all who aspire to enter the legal profession.
7.4Against this background a modern system of legal education must ensure that those who seek entry to the legal profession are properly competent. It must to that end adopt the best educational practice in the field of professional education and training and take as its core educational concept the benchmark of competence in legal practice.
7.5In determining what the elements of such a programme may be and how it is to be ensured a modern legal education system will involve a partnership between providers and the profession, and both the profession and the providers of legal education, whether formal or informal must ensure consistent quality across the different providers. However, the concept of partnership extends beyond quality to funding arrangements as well. Educational costs and educational access are closely linked: it is a fundamental principle that the costs of the professional programme should be shared amongst the partners in the process.
7.6The draft document attached is based upon and develops those principles and the Society would welcome comment on the relevance and application of these principles.
Competence as an essential element
8.1Having said that, competence is a controversial concept and it has to be defined. The draft Foundation Document seeks to define it. However it is important to explain why its introduction to the professional education programme in Scotland is important. In essence the concept is important as a facet of professionalism. The concept of professionalism implies both a technical and a moral dimension. It requires not only mastery of a recognised body of academic knowledge and skills, and the application of these in complex areas of work, but also a commitment to larger social purposes than the good of the profession. It is in essence a necessary consequence of the acceptance of the social responsibility of a legal profession. And the elements of a professional approach are essential when professional legal education is being planned. None of the previous founding statements of modern legal education in Scotland can be said fully to embody this approach to professional learning[4].
8.2It is a fundamental value of the profession, as a profession dedicated to the service of clients’ that a lawyer should be committed to the value or attaining a proper level of competence, maintaining that level and representing clients interests in a competent manner.
8.3It will then be essential for any Foundation Document to set out the range of required competences and to deal with the necessity for a centrally-agreed plan concerning how professional courses would be taught, what their learning outcomes might be, and how they are to be assessed.
8.4It ought perhaps to go without saying but it may nonetheless repay underlining that competences must be stated for every stage of the training process, and should be derived from professional legal practice.
8.5The Society invites comment on this approach.
The principle of partnership and a complete and fully connected training process
9.1If competence-based education is to be the standard by which trainees are trained throughout the training programme, then there are a number of qualities regarding it that must be stated at the outset. The statement of them is the responsibility of the Law Society of Scotland but the Society is convinced that it should and it intends to work in partnership with providers, training firms and other stakeholders to ensure that those qualities are embedded within any programme.
Curriculum and Methods
10.1Given the concentration on competence, it will be necessary to consider closely how those characteristics are to be achieved in the curriculum of any new programme. The structures of legal practice, traineeship and legal education change ever more swiftly. The contribution of traineeship and the legal education process are at the centre of the debate. One way of coping with this is to adopt a model of a core curriculum, surrounded by elective choices. Students and trainees would all study and be assessed upon the core. They would choose electives according to their preferences, and the electives would represent either advanced study of aspects of the core, or new areas of practice law or skills not already in the core, and students would be assessed upon their choice of electives. This model, which is developed in the draft document is applicable to all teaching elements of the professional training programme.
10.2At present, teaching in the professional education programme is carried out by practitioner-tutors and lecturers. There are many strengths to this system, and much of the success of the programme to date can be attributed to the practical experience and contextual knowledge that these tutors bring to classes. The Society does not want to change this system. However, it is essential to ensure that tutors and lecturers are properly trained for the educational tasks they are required to undertake, and the draft expresses the expectation that providers will ensure proper training in order to ensure that this training takes place at all levels of teaching in the programme.
10.3Again the Society would welcome contributions and comment on all aspects of the professional programme set out in the draft Foundation Document including the place of formal courses on the one hand and practical training through a traineeship on the other.
Discussion and consultation process
11.1The Society would welcome views not only on the issues specifically raised by this consultation paper but also more generally by the draft Foundation Document.
11.2The Society intends to place this consultation paper together with responses before a conference currently planned for December 2004. Responses to this consultation should therefore ideally be with the Society by not later than 30 July 2004.
The Law Society of Scotland
Edinburgh
June 2004
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Foundation Document
ANNEX A
A Foundation Document
proposed by
The Law Society of Scotland
for the
Future Development of
Professional Legal Education and Training in Scotland
LAWYERS OF THE FUTURE
CONTENTS
Page
Introduction 9
Fundamental Values Of The Legal Profession11
Fundamental Principles Of Professional Legal Education12
Factors Influencing The Development Of Legal Education And Training14
The Competence Framework21
Characteristics Of Competence25
General Curriculum Guidelines29
Elements Of The Professional Training Programme31
1Introduction
The purpose of this document is to set out the principal goals and the specific objectives of the Law Society of Scotland in relation to the education and training of those intending to become practising Scottish solicitors. In doing so the Society recognises the fundamentally important functions fulfilled by lawyers in a democratic society. It also accepts that the particular requirements which society makes of lawyers have changed significantly over the last 25 years, and that the pace of change is unlikely to diminish.
“In a society founded on respect for the rule of law lawyers fulfil a special role. Their duties do not begin and end with the faithful performance of what they are instructed to do so far as the law permits. Lawyers must serve the interests of justice as well as those whose rights and liberties they are trusted to assert and defend and it is their duty not only to plead their clients’ cause but also to be their adviser.