In England and Wales, solicitors will not need to study law in order to practice if proposals by the Solicitors Regulatory Authority are adopted.
In England and Wales it is already been possible to study another tertiary degree and do a conversion course in order to practice law. The current proposal, however, is more radical. It require lawyers to complete a tertiary qualification, not necessarily law, two years of work experience to “learn on the job”, and passage through a qualifying examination. If you are of good character, you may then be admitted to practice law.
Among other considerations, it is certainly causing consternation in Australia about whether we will recognise people in England and Wales who have qualified to practice law in this way. The most obvious concern is the pathway’s potential threat to the high standard of legal services in Australia and the justice system.
An Oxford-educated Englishman recently remarked to me, with a degree of feigned indignity and plenty of humour, that some of England’s finest lawyers studied philosophy. That issue has, until now, been addressed by an effective conversion course. I am unsure how Australians will react to the new legal education regime proposed for England and Wales. One view of that approach is that it’s back to the future – a little like how law used to be taught.
However, there are broader questions being discussed by the profession about legal education in this country. As the practice of law evolves to embrace technologies, such as artificial intelligence, lawyers are asking whether the way in which we are teaching law in universities is still valid.
Most of the commentary surrounds whether or not law schools in Australia ought still be required to teach what is known as the Priestley 11 – those core subjects addressing what has till now been regarded as essential learning in order to practice, such as evidence, procedure, constitutional law, criminal law, equity and trusts and so on.
How relevant is our established teaching method in the current and future age?
The Chief Justice of New South Wales, Tom Bathurst, addresses this very topic in an article in last month’s Australian Legal Review.
The publication comes hot on the heels of an event organised by the Supreme Court of NSW entitled “AI, Big Data and The Quantum Leap”, which included speakers from Google, IBM, and Microsoft.
We cannot compromise our standards and expect all to remain well.
The Chief Justice’s opinion would seem to be that our present approach to the teaching of law should not be abandoned, but supplemented by other vocational skills.
The mere notion that all people studying a law degree will not practice does not dissuade Chief Justice Bathurst from the view that “completing a law degree is a necessary and essential step in preparing students to be admitted to legal practice”.
In discussing legal education in the Australian context the elephant in the room is the fact that few law graduates actually end up practising law. Statistics differ around Australia because of the relevant health of state economies and their respective legal sectors. In the last five years the number of lawyers practicing in the ACT for instance has grown by 50%. In South Australia, for the same period, the profession has grown only 6%. In SA it is likely that only about 20% of legal graduates will find jobs as lawyers in this state. No doubt, this is a reflection of the parlous state of our economy. So whether the Priestly 11 is taught in SA is probably academic (pun unintended) to all but a minority of graduates.
However, we are talking about principles in this discussion, and Chief Justice Bathurst’s view is that if we are to adequately prepare students to practice law they must be taught law.
Alternatively, we had better be certain that graduates admitted to practice by any other method have a complete grasp on what is required to join, in Chief Justice Bathurst’s words, “a professional community whose members become empowered to advise and represent clients in all areas of the law and to have qualifications to practice in all Australian jurisdictions”.
Having said that, I am also a passionate advocate of would- be lawyers considering second degrees in STEM subjects. While there is still room for the logic of philosophy and the humanities, some lawyers will require a technology focus.
It may concern you to learn there is no consistency between jurisdictions about the requirement for post-admission education. In other words, what lawyers, once admitted to practice, continue to learn for the remainder of their careers, could be regarded as a bit “hit and miss”.
In this discussion it must be understood that within the large international firms in Australia lawyers become so specialised that, arguably, broad further legal education may not be relevant or helpful to them. It is also necessary for this sector of the Australian legal market to have access to ‘foreign lawyers’, either because they are servicing international companies or because the foreign lawyer may be a specialist in a particular area.
At the same time, the vast majority of Australian lawyers are sole practitioners, or will practice in small firms, and need all the support that can be provided, including comprehensive ongoing education. How else will they keep up with a changing world?
We cannot compromise our standards and expect all to remain well. The oaths or affirmations taken before our Supreme Courts on admission of every legal practitioner, carry with them a commitment to upholding the law.
So the key questions boil down to what to teach in order to qualify to practice law, what to teach once you have qualified, and what recognition should be given to lawyers who do not fall in line with Australian regulations of required legal education.
Lawyers can be conservative and slow to change, however, with the advent of increasing globalisation and the impact of future technologies, Australia’s legal education sector and regulators face interesting times, difficult questions, and a search for answers that are not immediately obvious.
Tthe purveyors of legal education do it as a business and will seek to protect their patches.
As we consider these important issues, it is essential to keep at the forefront our need to maintain the excellent standard of our legal profession, and our commitment to the administration of justice, both in order to serve clients and to preserve the independence of the courts. Guided by those principles, our pursuit for an ideal legal education system will be made easier. It will not, however, be easy.
To get it right we must reach a ‘fine balance’ as Chief Justice Bathurst puts it between “doctrinal learning, liberal education and vocational training…”. The importance of achieving the balance cannot be overstated – the successful continuance of our very legal system depends on it.
Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president-elect of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.
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