The 21st Century Law School:  Choices, Challenges and Opportunities Ahead*

Chris Ashford

Senior Lecturer in Law, University of Sunderland

chris.ashford@sunderland.ac.uk

*This article is based on the paper “The Future's Bright, the Future's Academic?” presented at the Annual Conference of the Society of Legal Scholars in Glasgow, September 2005.  My thanks to all those who stimulated the discussion around the paper and offered further insights.  My thanks are also due in the preparation of this article to Hugh Brayne and Mark O”Brien.  All errors remain my own.

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Summary

With the recent publication of the Training Framework Review (TFR), Qualifying as a Solicitor – a Framework for the Future, law schools have once more been presented with some soul-searching questions. Though the original “radical” proposals have since been toned down they continue to present a challenge and offer an insight into current thinking amongst sections of the profession.  Alongside this recent development; tuition fees, the Review of the Regulatory Framework for Legal Services in England and Wales:  Final Report (Clementi Review), commoditisation and standardisation within sections of the legal profession combine to create an uncertain future for legal education. The TFR envisages an outcomes based approach, rendering the traditional Qualifying Law Degree, Legal Practice Course and Professional Skills Course redundant for some at a stroke.  In their place, a multi-route entry system into the legal profession designed to ensure that those from more disadvantaged and non-traditional backgrounds are able to enter the profession. These proposals follow academic discussion of similar radical career pathways such as the Modern Legal Apprenticeship. The move towards more diverse pathways and a potential shift away from prescribed vocational qualifications could suggest that academic legal education will prevail while vocationalist programmes may be banished once more to the realm of the law firm. This article will seek to explore the short and long term impact of these combined developments, and examine what the future holds for law schools, vocationalism and liberal legal education.

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Contents

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Introduction

The debates which have surrounded the development of law school strategy and policy have historically focused on  “crises” and concerns as to the future of law schools (Wilson and Morris1994, Brownsword 1996, Twining 1996). New developments emerge and threaten to re-draw the map of legal education only to quietly sink away once more, yet always leaving an imprint upon academia and sometimes changing legal education. The modern-day law school exists in an age of mass higher education with the government seeking to encourage participation in higher education towards 50% of those aged 18-30 (Department for Education and Skills 2003, p4). The result means  legal education in England and Wales is at the mercy of uncertain, complex and powerful market forces.  Indeed, it has historically been difficult to ration artificially those numbers into higher education but the law”s arguably symbiotic relationship with the profession has acted as a “bottle neck” on student numbers (Twining 1996). The recent developments of the Training Framework Review and the Clementi Review together with the context of tuition fees act together to affect the market for undergraduate provision in law schools.

 

Before 1997, Government policy took the form of two imperatives.  Firstly that the number of entrants into higher education must be increased whilst secondly, real unit costs must fall (Brownsword 1996).  After 1997, those trends have been exacerbated by a Government “target” of 50% into higher education and a greater emphasis on “charging” which by December 2005 had secured a consensus across all three main political parties. The modern English university law school is largely a post World War Two development (Twining 1995).  As a relatively new phenomenon, law schools continue to grapple with both their function and form asking what they are for in a seemingly tantric process of navel gazing.

This article seeks to examine the two recent developments of the Clementi Review of Legal Services and the Law Society”s Training Framework Review (TFR), asking what implications they have for the law school in England and Wales and what challenges and opportunities lay ahead. The article focuses on the original TFR proposals although it also takes into account subsequent developments.

 

The Training Framework Review

Perhaps the most fundamental and radical proposal contained within the original TFR proposals is the move towards an “outcomes” based approach, or what have been termed “day one outcomes” (Law Society Gazette 2005).   Any individual wishing to qualify would need to show through their assessments that they meet all the requirements of the “day one outcomes”.  These assessments would be over a period of time which, though not expressly stated, one would assume could include the period in which the LLB is studied thus leading to “practice focused” LLB Programmes such as the Northumbria model (Kerrigan 2004).  Although the final TFR proposals are much less radical than earlier proposals, and at the time of writing, maintain a “compulsory” Legal Practice Course (LPC) (The Lawyer 2005, Law Society Gazette 2005), elements of the LPC can, the Law Society suggests, be completed outside of the LPC, perhaps indicating that the LPC is compulsory in name but not necessarily nature.   All of this has served to create a very confused picture of the proposals, compounded by the Law Society”s decision early in 2006 to abolish the Training Framework Group (Law Society Gazette 2006, The Lawyer 2006) and replace it with a new “committee”. However this committee is tasked with taking the TFR forward, suggesting that rumours of the TFR”s death may have been greatly exaggerated (Webb 2006).

 

The “day one outcomes” proposed within the TFR form a mixture of “academic” and vocational areas with some clear areas of overlap with the current Joint Statement, negating the need for a “Joint Statement” that includes the Law Society.  This can most clearly be seen under the heading of “Core Knowledge and Understanding of the Law as applied in England and Wales” in the TFR which refers to:

Knowledge of:

It is regrettable that an earlier reference to human rights was removed yet the other requirements appear quite similar to the current makeup of a Qualifying Law Degree (QLD) with additional commercial professional standard requirements.  It is not a radical assertion to suggest that these outcomes are a significant step towards the replacement of the Joint Statement and avoids a separate negotiation with legal academics.  With the Law Society assertion that elements of the LPC could be completed outside of an LPC the Law Society “U-turn” still leaves a considerable amount of scope for change within the existing QLD structure.  This is a political strategy that would have impressed Machiavelli.

In an “outcomes” based environment, the Law Society does not in practical terms require a Joint Statement.  This leaves the Bar Council somewhat isolated and the case for a separate statement significantly weakened politically. Nonetheless the Society of Legal Scholars stated in its response to the TFR proposals that separate Joint Statement negotiations would need to take place.  Perhaps they had little choice but to say so publicly and many law schools followed suit.  In reality, an acceptance of the TFR outcomes largely renders such negotiations redundant.  These TFR outcomes are therefore of crucial importance for law schools whether providers of professional legal education or not and the notion of “ignoring” these proposals as some have suggested (Johnson 2005) is simply not an option.  The most recent proposals from the Law Society suggest some attempt at “toning down” what appeared to be quite the  “radical” original proposals (Webb and Fancourt 2004). Now crucially the LPC remains. To what extent this will represent the training framework that is introduced ultimately remains unclear but it seems likely that greater scope for innovation will remain.

Together with the potential emergence of further “practice focused” degree models such as Northumbria we may need a new definition for the QLD.  The original TFR proposals suggested that the QLD of the future may be one which, rather than meeting the requirements of the Joint Statement, incorporates the “day one outcomes” to a greater or lesser extent.  Given the exclusion of the Bar Council in this radical overhaul we may need two QLD models – one for those wishing to be a solicitor and one for those wishing to be a barrister.  At a time when the two roles are merged this might not be an issue but at the present it clearly is.  The pressure to determine the route one wishes to take could be felt at an incredibly early point.  At the typical age of 18 students potentially would need to have decided on their routes unless law schools found a way of forging a joint “QLD”.  Given the existing complexities of legal education and no “standard” LLB (Webb and Fancourt 2004) a “joint QLD” seems an unrealistic prospect should such a situation arise.

The training contract also ceases to be a requirement of the new framework, moving instead to a more flexible non time-constrained period in which a student would complete with their supervisor a portfolio of their work, which would ultimately be submitted externally for assessment.  This would give firms incredible flexibility and scope for innovation in forging new “in house” apprenticeships, what have been termed a “Modern Legal Apprenticeship” (MLA) (Ashford 2003a, 2004a, Grew 2003, Tighe 2004). 

From April 2006, though the proposals have been considerably scaled back that key element remains allowing for an alternative to the LLB/ full Legal Practice Course route, even though, as some predicted, the LPC remains the “preferred route” by the Law Society. Elements (the precise extent of which remain unclear) would continue to be “compulsory” allowing flexibility around the existing LPC structure.

It also remains unclear whether a law degree is required.  Certainly earlier versions of the proposals stated expressly that there was no need for a law degree.  In a post top-up fee environment within Higher Education with differing degree “costs” the consumer may choose an alternative product to the law degree, perhaps opting instead for Media Studies or Sports Management or other such course that may be offered at a lower cost than  a law degree. Of course, this may represent schemes offered by a small number of law firms, taken up by a small number of law students but the potential for radicalism and innovation remains very real.

Clementi and the Emerging Models of Practice

In October 2003, Lord Falconer of Thornton, the Lord Chancellor and Secretary of State for Constitutional Affairs, appointed Sir David Clementi to review the regulation of legal services.  In March 2004 a consultation report was published and the final report was published in December 2004.  Sir David had advised the Conservative Government on British Telecom in 1984 and electricity privatisation in 1991. He was now to advise the Labour government on ensuring a greater market freedom in legal services, perhaps suggesting a similar radical reform of the sector.  As with the TFR there were some who felt there would be a lot of “hullabaloo” (Fennell 2004b) and nothing would come of it, but the proposals look set to transform large sections of the profession (Fennell 2004a, Paraskeva 2004). 

Clementi focuses on five regulatory matters:

Perhaps of greater relevance in the context of a legal education discussion is the potential for greater commoditisation, where “sectors” or practice become streamlined and mechanised so as to be able to be sold as bulk commoditised “products” often and increasingly supported by technology (see passim Susskind 2000).  Activities currently reserved for qualified individuals are:

• Conveyancing
• Probate Services
• Immigration advisory services
• Notarial functions
• Conducting legal proceedings
• The right to represent a client in court/rights of audience

The Clementi Review highlights five areas that may be provided by individuals who are not qualified lawyers:

• General legal advice
• Drafting of wills
• Estate administration
• Advice and representation on employment issues
• Claims management and claims assessment

The freedom proposed by the Clementi Review allows the role of a solicitor to become a system based one rather than a professional one.  Indeed, arguably, an Orwellian-like vision of row upon row of young paralegals working under the supervision of a solicitor has already arrived with existing commoditisation. 

This commoditisation can be seen in operation through two “core” models that have emerged within practice (Ashford, 2004b).  The first might be termed the “referral model”.  This model sees the client initially contacting a claims reception call centre or other intermediary organisation.  This stage would then “refer” the client to a law firm.  This might be a separate firm that has a contractual relationship with the referral organisation or may be part of the same company.  For example, “New Claims Direct”, is now a trading name for Russell, Jones and Walker – a national law firm with nine offices across the country.

Model A:  The Referral Model

The second model, made ever more possible through a combination of technology and the Clementi proposals might be termed “the commoditised model” which sees clients” work being undertaken initially by “legal clerks” or “junior paralegals”. These clerks would then typically report to “team leaders” who might themselves have been “legal clerks” at some point and may be ILEX qualified or are LLB/LPC graduates.  These team leaders would then report to a supervising solicitor.

 

Model B:  The Commoditised Lawyer Based Model

 

All of this contrasts with the traditional model, still the dominant model for the high street firm or for commercial areas. This is based on a direct client/solicitor relationship with the route to that position leaving less scope for an “in house apprenticeship” as the work remains highly skills based and less reliant on systems and technology.  In a post Clementi framework, as technology evolves, so too does the operation of legal practice in larger systems driven firms.  The traditional labour intensive model (model C) may cease to be cost effective for small firms and sole practitioners.

Model C:  The Traditional Client Model

In such a commoditised environment the freedom for firms to develop their own route to qualified status takes on a whole new value resembling much more the traditional qualification route of an “apprenticeship”.

Training Pathways

Together, Clementi and the TFR act to “open up” legal education by creating a range of new pathways.  Indeed, that recognition of the need for a diversification of training pathways is at the heart of the TFR.  Although the final Law Society proposals are not as radical as the Law Society had hoped or indeed as some feared, there remains a welcome recognition that different students desire and need different routes through which they can enter the profession.  Equally, the profession needs those varying pathways if it is to maintain a diverse profession.  The concept of a Modern Legal Apprenticeship (MLA), originally suggested in isolation to the Training Framework Review proposals (Ashford 2003a) is one such example of a pathway that is emerging.

A form of MLA would probably consist of several stages and an employee could join this “elevator” at a variety of points dependent on age and experience.  It was originally envisaged that the first stage would perhaps be an NVQ, followed by the ILEX course levels 3 and 4, possibly followed by the Legal Practice Course and then possibly an LLM.  These would be studied whilst working for a firm and may be delivered by distance learning, on-site, externally or through a Virtual Learning Environment (VLE).  As a result of the TFR that NVQ initial stage might be followed by a series of flexible short courses each designed to meet a “day one” outcome, linked as was a competency framework which I have designed (see below), to the individual”s roles.

I previously worked for a firm which already has a framework in place for people to progress down a non-traditional route. There an in-house NVQ  offers opportunities for those 16 year olds who choose to leave full–time education at 16 but wish to undertake a legal career.  In-house ILEX is also in place offering an opportunity for A-level students or bright GCSE students and those law graduates who do not have the capacity to fund an LPC to enter the profession. The introduction of these innovations was prompted by a desire to provide a career route for paralegals, rather than the change in funding arrangements or the discussions surrounding the TFR.  However, as a result of these initiatives, in many respects that firm is now better positioned than many to respond to the modern challenges that face students and firms alike.

In a post-Clementi framework, a 16 year old who joins a firm could perform the more mechanical of tasks and undertake an NVQ which could then be followed by small courses that constitute “day one outcomes”. The more able would be in a position to advance rapidly in roles in a commoditised practice area and at the same time move ever closer in knowledge and understanding to fulfilling the “day one outcomes”.  As such, the TFR as presently constituted may also threaten the ILEX qualification. Paralegals may prefer a more flexible and cost effective route to qualifying as a solicitor. That flexibility and ability to advance would, as a result of the TFR, also be available for those in a practice area which was not commoditised.

Whether large numbers of other firms would be prepared to undertake a similar commitment to that in the firm I referred to above remains unclear. Undoubtedly, a form of MLA would be a significant financial undertaking for a law firm and it may simply not be an option on grounds of prohibitive costs. For such firms, prima facie, a continuation in a total reliance on the existing traditional recruitment mechanism is their only option, perhaps leading to a greater fragmentation of practice just as we may see a greater fragmentation of Law Schools.

The Undergraduate Law School and the TFR

Many law schools do not offer vocational legal education either in the form of the LPC, Bar Vocational Course or a practical overview with the majority seeking instead to strike an even balance between providing a liberal education and acting as an introduction to professional training at undergraduate level (Wilson 1993).  Indeed, for some law schools the TFR and the Clementi Review may appear to be interesting arguments on the periphery of their vision.  In reality, these two report changes hold the potential to have a profound effect on legal education in England and Wales.

The most recent TFR proposals appear to be scaled back from their earlier radical incarnations in a bid to gain the support of both the profession and academics.  Yet, what is crucial about the reforms is they do allow for a diversification of routes into becoming a solicitor, albeit with a form of LPC still firmly at the core. The original proposals offered the poorest an entry into the profession without an expensive academic experience. The proposals appeared to have at their heart a commitment to encouraging those disadvantaged by the Government”s financial reforms a chance to enter the legal profession.  The decision to retain an element of an LPC may undermine that goal.

It may well be tempting to view assertions regarding the questionable future of the QLD as a fiction, perhaps even scaremongering.  However, when in the mid 1990s law schools in the United States had to operate during a recession students realised that their traditional educational experience was taking too long, putting them deeply in debt and offered them little in the way of enhanced employment opportunities (Weidner, 1997). They rapidly began to pursue other avenues. Law School applications declined by almost 30% in just five years. It is a stark warning to those who would now seek to be complacent about the combined implications of tuition fees, higher education growth, the Clementi Review and the TFR. With a small number of law firms taking on such an approach it may seem an unjustified apocalyptic vision but law firms are already developing new training frameworks (The Lawyer 2006) and for increasingly market driven students (Cuthbert 2005) it may well be only a matter of time before they take advantage of these new developments.

Before the launch of the 1992 Universities, McAuslan (1989) questioned law schools' awareness of the profound shifts in legal education in England and Wales and beyond: “Have these yet been…discussed in law school staff meetings?  How many of us have read them or even heard of them?” he demanded.  He went on to state that “there is, in short, a total lack of any long term thinking about the future of legal education amongst legal academics on any kind of coherent collective basis and I would venture to suggest little on an individual basis”.  Any such criticism of modern law schools would be inaccurate and unfair. Since McAuslan made these comments legal education both in terms of pedagogical practice and law school policy has become an increasingly respected scholarly area (Webb 2006). However the questions he put in 1989 are still pertinent, at the dawn of what may well be another age for legal education.

Indeed, there is anecdotal evidence that a consensus does now seem to be emerging which focuses on new “income streams”, course provision for the private sector, greater postgraduate provision and a move away from non- income generating, non-focused research and HEFCE focused undergraduate teaching.  However, this consensus appears to be one driven by law school management and all too often divorced from the legal scholars who contribute to the law school (Bradney 2002, 2004, 2005).

The radical shifts resulting from the Clementi Review, the TFR and the government”s higher education strategy, whether theoretical or real, must force law schools to question their very purpose.  We now find that ever more law firms believe they can train, or determine how to train, tomorrow”s lawyers better than a law school (Webb and Fancourt 2004). We also find that professional training can often be done more cost effectively by the private sector. The liberal ideals of the law school, driven by research pursued for the sake of interest and knowledge and teaching, appear increasingly under threat in a market driven sector.

The function of law schools as a “servant” of both the Bar and Law Society is historic.  It suited the profession that universities undertook the bulk of legal instruction during the 1920s (Gower 1950) and that role has developed ever since.  In the 1950s the argument was made for a greater emphasis on every barrister or solicitor first undertaking a university degree in law to be followed by a practical “apprenticeship” lasting two years incorporating a degree of “professional” legal training followed by a professional qualifying examination. 

That process, suggested by Gower, ultimately became the post-war structure of legal education in England and Wales.  The TFR as presently constituted threatens effectively to wind the clock back over sixty years.  It is startling to note that law schools appear to be in a perpetual state of revolution, of constant identity seeking (see as examples, Holdsworth 1925, Gower 1950, Twining 1996, Brownsword 1996, 1999, Birks 1994a, 1994b, Bradney 1995, 1999 and Mytton 2005).  If the law school was a person it would have been prescribed medication and therapy a long time ago.

For some time now less than 50% of law graduates enter the profession (Sherr 1998) yet a brief perusal of law school web sites illustrates an emphasis on “lawyer” skills such as negotiation and mooting.  In a post TFR age the power of the professions to exert control over the undergraduate programme becomes increasingly questionable and the freedom that many have sought for so long may well be within our grasp.

The challenge for academics is what to do with that freedom.  One colleague recently remarked to me that the dilemma was like that presented to laboratory rabbits on being released from captivity, having been forced to smoke cigarettes for years.  The first thing they say is, “I”m dying for a fag”.  Academics would once again need to undergo some deep contemplation as to their raison d”être. 

Equally, students expect to learn some aspects of the practical elements of law (Sherr 1998, Macfarlane, Jeeves and Boon 1987).  When the University of Sunderland introduced Civil and Criminal Litigation as a module this year there was an overwhelming demand.  Law schools may indeed find that they the master of the Law Society is replaced by the demands of the market.

A Practice Case Study

I have argued that the Training Framework Review together with the Clementi Review may lead to a heightened embracing of alternative routes into the legal profession, primarily that of becoming a solicitor.  It does not require a crystal ball to understand how legal education may look in that professional context.  I designed and delivered such a programme in my previous role at a top-ten national English law firm. I was responsible for legal training between 2002 and 2004.

Course design in that context is usually restricted by the working realities of a firm. That is to say, lunch time sessions were often unpalatable for all but the most crucial sessions and the aims and objectives of legal courses were based increasingly on “need” within a role based context.   The learning is secondary to the earning.  Liberal ideals of the pursuit of knowledge for knowledge”s sake are extremely limited though occasionally were still in evidence in sectors led by more liberally minded partners. Where they did exist they took the form of round table discussions amongst senior practice members and figures known for their innovation.  I have known such meetings contribute to the production of scholarly articles and texts (for an exploration of “scholarship” see Feldman 1989 and Wilson 1987).  Given Brownsword”s (1996) belief that it is the essential mission of law schools that academic lawyers are research active our understanding of what is a “university” becomes less clear as some universities turn their back on research and some law firm members embrace it.

Despite these scholarly aspects of the firm, legal education was overwhelmingly practical and needs driven.   For instance, colleagues in one area of practice spent some time considering, in conjunction with the training team, the skills and knowledge required to perform each particular role within that area of practice. The result was a complex competency framework which allowed any individual within that practice sector (both fee earners and support staff) to tailor their own legal training to their own specific needs.  This contrasts with a liberal conception of legal education within higher education which sees the overwhelming purpose (if one can distil it) as being to create “good citizens” (Brownsword 1999).

Legal education within practice however is not a direct reflection of that legal education which may take place within either higher education or further education. Indeed, since Woolf, the “skill” focus of practice has also arguably changed. Within the existing law degree framework there remains limited consideration of Alternative Dispute Resolution (ADR) and negotiation skills more generally within a clinical legal education context, yet within practice its importance has increased considerably with a general trend towards more “pre-action” activity in accordance with the general post-Woolf ethos. It is interesting to note that though these skills are not expressly included within the “day one outcomes” they do contribute to the general abilities listed.

The funding of cases is a crucial aspect of legal practice and is an area that in recent years has become ever more complex. With the continuing decline in legal aid and the rise of a myriad of complex Conditional Fee Arrangement”s (CFAs) funding has never been more important. 

Thus, the nature of the context in which law is taught within practice invariably means a greater emphasis upon practical application. However, law was also taught in its full social, political and economic context rather than by rote.  Examples of courses which adopted this approach included sessions that examined whether a “Compensation Culture” existed and the nature of Human Rights as broadly conceived (see also Ashford 2003b).

Whereas in many academic courses application is examined through seminars and a range of assessment mechanisms, in a practice context application is tested directly through an individual”s use of knowledge and skills within the firm. It is perhaps for this reason that a form of Modern Legal Apprenticeship made fully possible by the TFR and promoted as result of the Clementi Review is attractive for both employers and students. The latter are able immediately to apply their knowledge in the real world rather than being restricted to the confines of the class room. This “earn while you learn” approach also has the added benefit for firms of extending professional socialisation, already seen to a limited extent within law schools (Stanley 1988) to a much deeper level.

With regard to the “Student Experience”, students are faced with a number of obstacles instantly which “traditional” students have not had placed before them. For students of legal education, legal education is secondary to their primary “day role”.  For those “traditional” students, work is generally secondary to being a student though these general trends appear to be changing with higher numbers of students seeking work alongside their study.  The freedom that students can enjoy within their current degree structure would vanish. The present journey to becoming a solicitor is not just about the skills one might learn in a classroom or knowledge one might glean from a tutor. It is a much more holistic approach where students” awareness of life and society is also broadened. A route into the profession that removes this, such as that possible through the TFR runs the risk of creating a generation of solicitors who have a narrow awareness of the world in which they operate and the clients they seek to serve.

Conclusion

The 21^st century law school will not have a single identity. Rather, the Clementi Review, the Training Framework Review and new funding arrangements in England and Wales mark a move to ever greater diversification in legal education. Indeed, Brownsword (1996) has noted that for some time law schools have been travelling in different directions, often driven by their varying reactions to teaching and research assessment exercises. These recent developments are likely to further that process.

Those who can afford a traditional law degree, that is to say the poorest aided by the Government and the wealthiest aided by their parents, will no doubt continue to seek out that qualification in order to become a solicitor or for the continuing reason that socially having a law degree is in some way “a good thing”.

The prospect of a “new deal” in legal education is a daunting one. In the post TFR and Clementi age the market will have an ever greater effect on legal education. Though that impact appears to be much less than originally anticipated, even with the much less radical TFR proposals now coming forward, these developments still represent a new challenge and consideration for law schools. Law firms dissatisfied with undergraduate provision or LPC provision can simply “go it alone” or outsource their legal training allowing 18 year old fee earners to manage around 300 cases whilst undertaking legal education so as to fulfil their aim of becoming  solicitor. This is already happening, to an unknown extent, in law firms today.

At a time when research, HEFCE based teaching and scholarly activity is increasingly scrutinised by university management it becomes ever more believable that the future powerhouses of legal scholarship may be the larger law firms alongside liberal law schools which might act as a “house of intellect” for the profession (Savage and Watt 1996).

Effectively, as Weidner (1997) noted in an American context, we are all in the same fleet if not quite the same boat. The challenge and opportunity for the 21^st century law school is to cease being a victim of the ebb and flow of education politics (Brownsword1996) and seek out certainty as to our mission in these turbulent times.

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