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ETU response to ‘Preparatory ethics training for future
solicitors’
Introduction.......................................................................................................... 2
The SRA’s position and workplan ...................................................................... 2
Structure of this document ................................................................................. 3
Report findings, recommendations and SRA responses.................................. 4
1
Academic phase (undergraduate legal studies/conversion courses) .. 4
SRA responses ........................................................................................... 4
Joint Academic Stage Board ....................................................................... 4
Do the vocational stages rely on the law degree/conversion course? ......... 5
Guidance to support ethics training ............................................................. 5
Summary of SRA’s position ........................................................................ 6
2.
Vocational Phase (Legal Practice Course) ............................................. 7
SRA responses ........................................................................................... 7
3.
Vocational phase (Training Contract/Professional Skills Course) ....... 8
SRA responses ........................................................................................... 8
The new Professional Responsibilities Test ................................................ 8
Strengthening the training contract, and Work Based Learning ................... 9
Evaluation of the Work Based Learning outcomes ...................................... 9
4.
Cross-phase, post-qualification or QLTR recommendations ............. 11
A solicitors’ oath? ...................................................................................... 13
Requirements for firms and individuals post-qualification .......................... 13
Transferring to the roll ............................................................................... 13
Assessment methodologies ...................................................................... 14
Ethics seminars, roles within firms, hotlines and prizes ............................. 14
Conclusion ......................................................................................................... 16
References ......................................................................................................... 17
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Introduction
The Law Society commissioned Kim Economides and Justine Rogers to examine
ethical training in legal education and practice in 2008. Their report
(www.lawsociety.org.uk/influencinglaw/policyinresponse/view=article.law?DOCUMEN
TID=419357), published in March 2009, raised concerns about the potential impact of
inadequate training in ethics on practice standards and made 24 recommendations to
the Law Society on how to deal with these concerns.
Overall, the report stresses a need to enhance the training in ethics across the prequalification system, with a particular emphasis on the academic phase. It also
questions the assessment procedures at the later vocational stages. Pervading the
report is the distinction between the concept of ‘ethics’ as an intellectual,
philosophical and moral characteristic – in essence knowing right from wrong – as
opposed to ‘conduct’ which is seen more as knowledge of codified rules capable of
objective instruction and measurement.
The report sets out a series of findings structured around the academic stage, Legal
Practice Course (LPC) and Training Contract phases. It then goes on to make 24
specific recommendations to both the SRA and TLS.
The SRA’s position and workplan
The SRA is a public interest, risk based, regulator. Our purpose is to set, promote
and secure in the public interest standards of behaviour and professional
performance necessary to ensure that clients receive a good service and that the rule
of law is upheld.
The Law Society has drivers which are distinct from those of the SRA. In this case
the driver appears to be to ensure that solicitor training continues to produce ethical
practitioners who will further encourage use of, and investment, in the English and
Welsh legal services market. Where these aims coincide, and where we can meet
the public interest argument, we will consider the recommendations of the report.
We support the principle of enhancing ethics training. The imminent changes to the
Joint Academic Stage Board’s (JASB) membership and terms of reference, as well
as an increased role for the regulatory bodies in the Board, gives us an opportunity to
explore the extent to which ethics training is covered by the early stages of a
solicitor’s education.
Our approach is grounded in clearly defined and measurable standards – that is
especially true of the recent revision work we are progressing. The day one
outcomes state our expectations of a newly qualified solicitor on the first day they are
authorised to practice – they are intended to inform all routes for and stages of
solicitor qualification.
The Legal Practice Course’s (LPC) underpinning standards have been recently
revised and retain professional conduct at their core. The new Work Based Learning
(WBL) system has specific outcome elements for conduct; the pilot will give us a
detailed insight into their appropriateness and effectiveness. It will also afford a
better picture of trainees’ exposure to, and therefore practical experience of, ethical
issues. The proposed QLTS is currently being developed and has a tight timescale
for implementation – it must be in place by early 2011 – but the core principle will be
objective assessment against competencies drawn from the day one outcomes. We
are also exploring a new final-stage test of professional responsibilities for all new
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entrants, whether domestic route or transferees. Professional conduct is currently
within its scope.
There is an argument that moving further towards an objective, scientific, evidence
and outcomes based system could impact on the creation of professionals who can
‘self-regulate’ – that is, be possessed of a sense of professionalism and ethical
behaviour. We are at a point where, just before we implement yet more substantial
outcomes-based changes to the qualification framework, we can consider some of
the recommendations of the report.
Structure of this document
This briefing works through the recommendations which specifically refer to the work
of ETU, grouping them together by the three phases:
1.
academic stage (undergraduate legal studies/conversion courses).
Page 4
2.
Vocational Phase (Legal Practice Course).
Page 6
3.
Vocational phase (Training Contract/Professional Skills Course).
Page 7
4.
Cross-phase recommendations (those recommendations referring to multiple
phases, as well as those referring to alternative entry methods - i.e. lawyers
transferring to the roll from another jurisdiction – and post qualification).
Page 10
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Report findings, recommendations and SRA responses
1
Academic phase (undergraduate legal studies/conversion courses)
“The report outlines arguments for and against mandatory teaching of ethics
and professional responsibility in undergraduate legal (and other) studies. It
sets out various approaches (formal, theoretical, clinical and humanistic) and
options for change. If tripartite discussions between TLS/SRA, the Bar and the
community of legal scholars fail to reach a consensus in favour of renegotiating
the Joint Announcement to include an ACLEC-type ‘outcomes statement’
covering legal values and the moral context of law, the report advises TLS/SRA
unilaterally to require ethical awareness at the point of admission to the
vocational stage, following the Australian model. “
Recommendation 1. “We recommend TLS take a lead and encourage the SRA to
initiate a review to consider the pros and cons of revisiting the content of the Joint
Announcement in order to see whether any consensus exists, or could be
constructed, to make awareness of and commitment to legal values, and the moral
context of law, mandatory in undergraduate law degrees, as originally proposed in
the ACLEC Report (1996: 24). We would at this stage advise setting general, flexible
guidance and specifying ‘outcomes’ following consultation with the representatives of
the academic community (SLS, ALT, SLSA) and other stakeholders such as the Bar
and the Legal Services Board. It may be that the Standing Conference on Legal
Education, or a revised Ethics Education Forum 2 specifically dedicated to the
question of how best to introduce ethics and professional responsibility in
undergraduate legal education could provide a useful platform for this debate.”
Recommendation 2. “We recommend that the professional bodies should together
consider what support might be offered to law schools to assist them to comply with
this flexible guidance, as currently is the case with library provision, and in reviewing
the process of validating law degrees. In the event that tripartite discussions fail to
secure a consensus in favour of changing the Joint Announcement we recommend
that TLS encourage the SRA to unilaterally require anyone seeking to proceed to the
vocational stage of qualification as a solicitor demonstrate knowledge, understanding
and commitment to the core values enunciated in Rule One of the Solicitors Code of
Conduct.
SRA responses
Joint Academic Stage Board
The Joint Academic Stage Board (JASB) has revised terms of reference from
September 2009 and the regulatory bodies are about to commence the appointment
process for new members. The present intention is for JASB to consider the Joint
Statement during the latter part of 2010. It may be appropriate to add enhancement
of academic-stage ethical instruction and/or assessment to the Joint Statement at
that point. As it is a Board with membership from both main branches of the
profession, the Bar Standards Board would have to be content with such a focus
being instigated by a solicitor-focussed report.
In terms of guidance for law schools, the report explores three options:
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
no change

mandatory addition of ethics to the Foundation subjects/standalone courses
pre-LPC (if JASB do not require ethics training for QLDs), or

a more flexible outcomes-based approach, relying on guidance and
encouraging better ethical resources at law schools.
With the renewal of the remit of JASB, there is an opportunity to add consideration of
ethics-training requirements to their policy agenda. Any changes would require a
change to the Joint Announcement and the BSB, who are currently consulting on a
new principles-based code of conduct, would have to actively support such a move.
The SRA could open discussions as recommended with the BSB and legal scholars
to explore the extent to which ethics training can be added to the undergraduate
curriculum. We could also have preliminary discussions with our BSB counterparts
to see whether we might have a shared agenda.
Do the vocational stages rely on the law degree/conversion course?
The report supposes that the later stages of vocational training rely on the academic
courses to arm students with knowledge of the ethical and regulatory frameworks.
This is not the case. The new LPC Outcomes details the preliminary knowledge
expected of students before they begin the course - ethical competence is not on this
list. Further, Professional Conduct and Regulation is a core subject in Stage 1 of the
new LPC. It is logical to concentrate efforts on instilling solicitors’ ethics into students
at a stage specifically designed for solicitors, not at an earlier stage which must give
a foundation suitable for any branch of the profession.
Alternatively, a mandatory training course, separate from the academic or vocational
stages, could be seen as inefficient (i.e. putting more cost, time and study pressure
on trainees or even their employers) and could be seen as a statement that the
conduct-focused elements of the vocational stages are not fit for purpose. At the
heart of the report is the perceived need to invest a philosophical sense of right and
wrong in prospective solicitors – can a standalone course accomplish this?
Guidance to support ethics training
The less prescriptive approach suggested, where the professions give guidance to
academic leaders to support ethics training, may be more diplomatic but does not fit
with our organisational objectives. These key objectives involve setting standards
and issuing information to organisations to help them comply with such standards,
not using guidance as a replacement. In short, guidance should not and must not be
a replacement for standards if we identify a risk to the public. Also, tied into this
recommendation is a suggestion that we should ‘require’ law schools to have
materials and resources to allow ethical education, which seems contradictory.
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Summary of SRA’s position
In theory, once the new system for solicitor training beds-in, the LPC will arm people
with the technical knowledge and understanding, WBL will provide an opportunity to
put this into practice and also assesses experience where it is gained, and the PRT
provides a final assurance that solicitors have been assessed across a broader
range of issues than might have been covered by individual WBL periods.
The report recognises that the day one outcomes express abilities in a similar way to
ethical value statements used in US medicine. The SRA is currently looking at how
our new outcomes statements (for the LPC and Work Based Learning for instance)
put these into practice.
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2.
Vocational Phase (Legal Practice Course)
The current LPC training and assessment regime, which is in transition, is
reviewed from the standpoint of its impact on ethical behaviour. Criticisms are
noted and questions raised about the adequacy of the assessment procedures
and mechanisms. Other options are set out and the experience of modern
medicine highlighted. We advise that some kind of Hippocratic oath be
considered and adopted in order to reinforce commitment to core values.“
Recommendation 5. “Regular discussion groups, through conferences and other
networks, whereby LPC students, law tutors and practitioners (including judges) meet
to discuss ethical dilemmas and stories raising moral lessons or parables arising in
the context of legal practice.”
Recommendation 4. “TLS needs to learn more about the types of assessment
regimes in the vocational courses of other professions”
SRA responses
The Legal Practice Course teaches professional conduct and ethical issues as a
pervasive subject. It is woven throughout the course and its assessment
requirements. Significant elements of the course are discursive in nature. No further
discussion groups are anticipated within the current work plan and we will consider
this further.
During the development of WBL we looked at the approaches used by other UK
professions. Further studies of other professions’ assessment regimes will be
undertaken as required.
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3.
Vocational phase (Training Contract/Professional Skills Course)
“The place of ethics in workplace based learning and the Professional Skills
Course is considered and the report notes that the SRA is reviewing current
arrangements. The report surveys recent literature on workplace learning and
draws on the experience of postgraduate medical training in specifying
outcomes that produce individuals capable of making ethical and strategic
judgments. Our advice is to encourage firms to introduce in-house ethics
officers that might enhance and deepen workplace learning, a suggestion that
also implies investment in ‘training the trainers’.”
Recommendation 8. “We recommend TLS to encourage the SRA to review the PSC
to ensure that it underpins earlier training in the light of trainees’ experience of the
workplace.”
Recommendation 9. “We recommend TLS to ask the SRA to change the TC
appraisal form so that it includes an ethics/professional responsibility section
forthwith. Furthermore, it is essential that an ethics assessment is introduced during
the workplace based learning phase.”
Recommendation 11. “TLS should consider whether the SRA proposed standards
for work-based learning satisfy its view of ethical and professional standards. “
Recommendation 12. “TLS should follow up with SRA whether and in what ways
they used Webb et al’s (2004) study to enhance workplace learning, particularly the
use of their list of workplace learning activities. Is the SRA mindful of Grant’s (2007)
warning that outcomes without clear and credible guidance can be counterproductive? We recommend that the SRA issues guidance on the desirable activities
and outcomes of workplace learning.”
Recommendation 13. “We recommend that TLS urge the SRA to set rigorous and
stretching outcomes for trainees in terms of ethics and that those assessing whether
these outcomes are being met are fully and demonstrably fit to exercise their
judgment. TLS should also encourage SRA to consider how, ideally, ethical
instructors should be trained and regulated, and how best to establish a
national/international resource for ethical instruction and assessment.”
Recommendation 18. “TLS to review the Webb et al (2004) report, to reconsider the
use of (online) portfolios, interviews and critical incident reporting for assessment at
TC phase. “
SRA responses
The new Professional Responsibilities Test
The PSC will be subject to a review, in light of the changes to the final vocational
training stages – i.e. Work Based Learning and the test of professional
responsibilities. The Professional Responsibilities Test (PRT) project will look at the
extent to which training courses can and should be mandatory, in order to support
candidates to meet the required standard.
The purpose and scope of the PRT are yet to be agreed upon, and the outcomes that
will form the curriculum/assessment specification need to be developed. We
therefore have an opportunity to ensure ethics is well covered, as well as the more
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technical, measurable knowledge, understanding and skills (primarily, of the Code of
Conduct) enabled by a positivist approach.
Strengthening the training contract, and Work Based Learning
We are currently taking forward work to strengthen the existing training contract
arrangement, in preparation for the potential introduction of Work Based Learning.
We will consider the suggested changes to the present appraisal arrangements.
Work Based Learning will require all candidates to successfully complete
assessments in our new training outcomes. The final element of these outcomes is
‘Professional conduct’. This outcome requires successful candidates to be able to
“exercise effective judgement in relation to ethical dilemmas and professional
conduct requirements” by the end of the learning period. This goes further than the
outcomes quoted in the report, which were taken from an earlier draft. Assessment
organisations will have the freedom to design their own mechanisms to ensure this,
but the SRA will validate their proposals.
Very early feedback from WBL pilot assessment organisations suggests that
candidates are producing evidence to show their understanding of ethical and
conduct issues. We also understand that the system encourages greater contact
between candidates and senior solicitors, increasing socialisation opportunities and
the ethical ‘osmosis’ the report refers to.
Evaluation of the Work Based Learning outcomes
Recommendation 11 is for the Law Society, who are actively scrutinising the WBL
pilot. The SRA is performing its own independent evaluation of WBL, and the
outcomes are within its scope. The pilot should tell us the extent to which the
outcomes are effective and appropriate.
Webb Maughan and Purcell’s report has very much informed the development of
WBL. Some are at the core of our current proposals – such as the normal duration
remaining at 24 months. Others have deliberately not been carried forward due to
deliberate policy decisions – such as assessment via interview, and prescription on
portfolio contents. Our approach in limiting the prescription on organisations that
provide the training and assessment services meant that the list of activities
mentioned does not feature in our Handbook of requirements.
The pilot should tell us whether further SRA guidance is needed to support
candidates to achieve the outcomes, and organisations to design and operate
programmes. The WBL Handbook, the key document for operating the system
containing responsibilities and guidance for all participants, could be revised to
contain the activities list.
The WBL outcomes considered by the report have since been subject to further
development and refinement. The new version requires effective judgement to be
exercise in relation to ethical dilemmas, and covers the less-directly ethics related
areas that the report deems to be aligned with ethical competence – communication,
self-awareness, working with others.
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At this point we do not intend to impose prescriptive requirements on organisations,
or individuals working in those organisations, to establish the role of ethics instructors
or regulate that role. Nor do we intend to facilitate the establishment of a national
resource for ethical instruction/assessment.
The WBL project is an opportunity to observe directly the validity and reliability of
portfolios as assessment tools for the final vocational stage. We will be particularly
interested in the pros and cons of online as opposed to hard-copy portfolios – both
are being used in the pilot.
The current non-prescriptive approach allows any organisation to build interviews or
critical incidents tests into their assessment systems, although none have chosen to
do so in this pilot study. Previous report such as Webb Maughan and Purcell will
give important structure to our considerations of the pilot’s fitness and effectiveness.
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4.
Cross-phase, post-qualification or QLTR recommendations
Recommendation 3. “TLS should encourage SRA to continue to keep under review
assessment procedures and mechanisms and whether, in the light of new
technology, these should be direct or indirect. TLS needs to be in a position to
establish whether the assessment regime is adequate on the LPC (which may
involve access to SRA reports and other information).”
Recommendation 6. “We recommend that TLS directly sets up roundtable
discussions between vocational course providers and law teachers responsible for
undergraduate legal studies to discuss the optimum division of learning outcomes at
their respective phases. In particular, what issues or perspectives need to be covered
at the academic phase in order to facilitate subsequent learning? If the academic
phase is to remain ‘ethics free’ then vocational course providers need to make
contingency plans to deal with this so that entrants to the profession have a solid
ethics foundation.”
Recommendation 7. “We suggest further investigation of general ethical training in
both ancient and modern medicine. In particular we believe lawyers’ standards would
be raised if, like most doctors, they took some form of Hippocratic Oath, perhaps in
the form of a Declaration.”
Recommendation 10. “Law firms should be encouraged to create, either within a
wider role for money laundering and compliance officers or as part of the training
function, workplace ethics officers responsible for firm-wide awareness of ethical
responsibilities and duties owed to clients, other solicitors, the wider public and
society at large. There could also be online resources shared by firms, particularly
those that are small or medium-sized, to strengthen and augment in-house training
programmes.”
Recommendation 14. “When considering reviewing ethics instruction during CPD
we would advise TLS to ask the SRA to examine further some of the principles,
strategies and practical support evidenced in the NSW and Canadian examples cited
above.”
Recommendation 15. “TLS to encourage SRA to consider the adequacy of current
arrangements preparing candidates for the QLTT and whether more needs to be
done to support ethical awareness through providing ethical guidance online or
offering ethical training packs. The priority must be to develop rigorous and efficient
assessment mechanisms, for example, EMSQs that can rigorously and accurately
assess the depth of understanding of foreign lawyers’ professional ethics as
understood within UK and European contexts. The TLS should advise the SRA to
consider quality standards within specialist fields of legal practice, eg family law, and
the specific ethical concerns that may arise within these fields.”
Recommendation 16. “TLS to consider further what component or components of
professionalism it wishes to assess at each stage and therefore which sorts of
assessment methods are most suitable. This may involve the use of a multi-sourced,
multi-layered assessment approach as illustrated in the ‘know-can-do’ pyramid.“
Recommendation 17. “TLS to encourage the use of multiple methods of
assessment at the academic and vocational phases, with the broad aim of fostering
reflective practice.”
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Recommendation 19. ” TLS to consider funding action research or research that
investigates the effectiveness of various ethics assessment practices at each stage
of training, including case reports (externally-identified as well as selected by the
student/trainee), to portfolios and interviews (with and without critical incident
reports), to portfolios with multiple contributors.”
Recommendation 20. “TLS to further consider how best to establish “ethical
seminars” where dilemmas and scenarios raising awareness of professional values
can be discussed amongst experienced and junior lawyers, and trainees for TC and
CPD. Further, TLS to consider how best to encourage sharing of firm-based ethics
assessment practices (clearing houses/web resources/ tools for teaching and
assessing /content: exercises, case-based examples and stories etc)”
Recommendation 21. “We advise TLS to follow-up PMETB and other resources
referred to in this section in order to invite the SRA to define and promote the ethical
assessment that is valid, transparent and positive, and to provide robust training and
adequate support to those involved. “
Recommendation 22. TLS should follow through the ‘open debate’ it has started
and review the results of its online poll. It should consider ways in which ethics could
become more prominent and whether it needs to be doing more work on embedding
MacCrate-type fundamental lawyering values throughout the profession. As we have
suggested earlier, one way to help solicitors reconnect with their basic professional
values may be to review and reinstate an oath/declaration analogous to the medics’
Hippocratic Oath.
Recommendation 23. TLS and SRA should be encouraged to consider whether,
both as part of risk management and an attempt to expand legal markets, there
should be mandatory ethics committees or ethics officers/partners in all law firms
responsible for developing firm-wide policy on ethical issues, including training, client
care, conflicts etc. TLS to consider supporting the teaching of legal ethics through
investing in the work of existing centres (UKCLE) or creating a new centre dedicated
to teaching and research on professional legal ethics. Other forms of support that
could be investigated are: initiating a student essay competition on the topic of legal
ethics (to be published in Legal Ethics). City Solicitors’ Educational Trust (CSET) and
large law firms to be encouraged to support lectureships, fellowships and
scholarships in the field of legal ethics and professional responsibility.
Recommendation 24. TLS to investigate use and value of ethics hotlines, and the
institution of an annual prize to be awarded to either an individual or a law firm that
makes an outstanding contribution to the field of legal ethics.
SRA responses
Review of assessment procedures
The SRA, in our adoption of outcomes across the training processes as opposed to
inputs, is moving away from prescription of training and assessment methods. The
ways in which assessments are carried out are largely up to providers in the
vocational stage. The external examiner role has been enhanced and the Quality
Assurance Sub Committee will consider consolidated reports on the outcomes of the
new courses after they have had time to run. We have appointed independent
evaluators for the WBL pilot, and assessment methods are within their scope.
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Recommendation 6 would appear to be within the scope of the SRA rather than TLS.
Such discussions are not in our short term workplan and their terms of reference
would have to be very clear in order to guarantee value.
A solicitors’ oath?
There may be benefits in researching ethical training in ancient and modern
medicine, and in the adoption of an ethical declaration. The SRA would have to
institute this declaration into the other routes to qualification as well as the developing
domestic training framework. We would also have to require similar declarations to
be signed – or even sworn in the presence of a witness - by almost 140,000 existing
solicitors if they are to have meaning. The value of such an exercise would have to
be clear; we would have to establish which professions have adopted such an
approach, and how their experiences show a clear public interest benefit, before
considering this.
Requirements for firms and individuals post-qualification
The SRA is working extensively on firm-based regulation, and will try to encourage
firms to tackle risk themselves wherever possible. The level of detail of our
requirements is still being worked on. The Quality and Standards project, which will
amongst other things seek to establish competence descriptors for solicitors at
various career stages and roles, may also be able to include these issues in its
scope.
The Quality and Standards Framework project is to look at the role of CPD, amongst
other things, in the SRA’s work to ensure good quality legal services provision postqualification. A discussion paper will be published in the Summer of 2009 to initiate
this project. This provides an opportunity to consider the need to place a greater
emphasis on ethical competence than we do at present.
It is difficult to argue against the approach suggested in the NSW example – that is,
having ethics as a compulsory element of a CPD requirement. The Education and
Training Unit frequently looks to other professions and jurisdictions to learn lessons
and establish good practice in regulation and we can do so again here.
Transferring to the roll
The arrangements for lawyers transferring to the roll here are currently being
overhauled, with the guiding principle that the same core standards apply to
transferees as the do to those who follow the domestic route – i.e. the day one
outcomes. Whilst robust assessment against those standards will be crucial, we
cannot agree completely with the view expressed in this recommendation that priority
is given to ethics.
The whole gamut of the day one outcomes must be satisfied; prioritisation of ethics
over, say, knowledge of the foundation subjects of English and Welsh law would be
inconsistent with the domestic approach and the public interest. For example,
understanding of the Solicitors’ Accounts Rules, which our investigatory teams
suggest can be a significant cause of disciplinary action, is a technical area that goes
into specific measurable detail as opposed to softer characteristics. It would
therefore be difficult to argue that general professionalism is prioritised over accounts
rules.
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The assessment specification has not yet been developed, nor has the method, so
we are at too early a stage to specify whether Extended Matching Sets Questions
should be included. However, we could investigate this approach as suggested.
The new Qualified Lawyers Transfer System may also make use of the Professional
Responsibilities Test. This means that both direct route candidates and transferees
will have been tested to the same standard using the same mechanism in
professional conduct and client care.
There may be value in producing ethical awareness guidance for prospective QLTS
candidates. The field-specific quality standard setting seems analogous to
professional accreditation – a field of activity which is being passed to the Law
Society.
Assessment methodologies
Although Recommendation 16 is aimed at the Law Society, the SRA is responsible
for assessment of intending solicitors. The ETC has recently considered a version of
Miller’s pyramid in relation to the Professional Responsibilities Test. The Committee
is also due to consider an analysis which compares the learning outcomes of each
component stage of the domestic direct-route qualification system. This should help
clarify the SRA’s approach to the scope of the Professional Responsibilities Test, and
possibly other aspects of the new framework. A multi-layered approach to
assessment will be in place when all assessment strategies are on-stream. Where
ethics fits into this approach could be discussed at this point.
In the preamble to Recommendation 17, the report recognises that there is not a gold
standard of reliable and viable ethical competence assessment, but also states that
this is no reason to do nothing in encouraging assessment. In WBL the SRA is trying
to encourage reflection without prescribing methods. Although the academic stage is
not something we can, or wish to, directly control, there may be scope within the
JASB review to try and instigate a discussion around enhancing the ethics
requirements a revised joint statement.
The Law Society could undertake research into the effectiveness of various ethics
assessment practices at each stage of training. The SRA would welcome
involvement in discussions with the Law Society in researching, defining and
potentially promoting valid, transparent and positive ethics assessment and training.
We must be careful that there is room in any stage for additional requirements,
however.
Ethics seminars, roles within firms, hotlines and prizes
Ethical seminars, as suggested within Recommendation 20, may be something the
Law Society wishes to consider, but they are not within the ETC workplan at present.
Resource has to be carefully allocated, and as a result the public risk must be clearly
demonstrated before we move forward on such a programme.
Recommendation 22 is a matter for the Law Society – as the report states, a driver
for the research and the ethical debate it hopes to encourage was to equip solicitors
as amongst the most “highly respected, advanced and morally fittest” practitioners.
This appears to be more of a representational matter: any SRA involvement must
have the public interest as the prime motivation. This may well be an area where our
differing drivers coincide.
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The SRA could consider whether the requirement for ethics committees, officers or
partners (as put forward in recommendation 23) is proportionate, practicable and
necessary. This work could fit neatly into either entity-based regulation or the new
Quality and Standards framework project. Annual ethics prizes are a
recommendation for TLS and are not within the regulatory scope of the SRA.
The SRA operates a professional ethics call centre, and has done for a number of
years. The Ethics line is more focussed on supporting solicitors to meet the
requirements of the Code of Conduct, however. Again, annual ethics prizes – as in
Recommendation 24 – are a matter for TLS and not within the regulatory scope of
the SRA.
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Conclusion
The report’s conclusion states that “Our final point is to emphasise the need for
leadership, experimentation and flexibility in order to overcome resistance and
introduce reforms in ethical training that do not undermine standards or create
instability. Change is perhaps most urgent at the stage of undergraduate legal
studies and if leadership is shown here so that ethics becomes more embedded and
meaningful in our university law schools we would predict a ‘domino-effect’ on
subsequent ethical training. Law schools hold the potential to revive and reinforce
professionalism, while also challenging established understandings of lawyers’
ethics, and so can help lay more solid foundations for the ethics and work of future
lawyers “
The SRA’s focus in the education and training of solicitors is currently, and will move
further toward, clear objective standards and measurement against them. JASB is in
midst of a review and are due to revisit the Joint Statement next year. Students will
soon start to go through the new LPC. The WBL system is currently piloting. The
QLTR and testing systems are being completely overhauled. We are also looking at
the need – post qualification – to set standards for the quality of service provision and
give a framework to assist solicitors meet them. As the introduction suggests, we
have reached naturally a point where, coinciding with the report, we can draw breath
and see whether in the move towards more measurable competence standards we
are losing the less tangible values and qualities needed to produce self regulating
professionals.
Also, as a result of the Legal Services Act, the profession is becoming more open to
‘outside’ investment and, potentially, influence. The themes that run through the
report – professionalism, dedication to the public interest and the rule of law - could
all be under pressure from increased commercialism.
However, the SRA is a risk based, proportional regulator. We have to be certain that
there is an unarguable evidence-base for additional requirements on solicitors preand post-admission. The changes recommended by the paper are wide-ranging,
expensive and could put significant extra prescription on a profession that will rightly
object to unnecessary bureaucracy. We will also be under scrutiny from the Law
Society, and the Legal Services Board as the over-arching body responsible for our
regulatory activity. We must also ask ourselves this question – if we insist upon
enhanced training and/or assessment in ethical competence, what other aspects of
training might suffer?
At the same time we are trying, across many areas of education and training, to get
solicitors and trainees to reflect on their own learning, their strengths and
weaknesses. We do have a responsibility, in the public interest, to produce solicitors
who have met rigorous standards of intellect, skill, and character. This report gives
us an opportunity to step back and look at whether our activities fully achieve this
responsibility.
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DRAFT
References
The report references several academic studies and initiatives. Full references
appear in the body of the report, but two of the main initiatives mentioned in this
report are listed below for convenience.
ACLEC – www.ukcle.ac.uk/resources/aclec/index.html
the Advisory Committee on Legal Education and Conduct (ACLEC) was set up in
April 1991 under the Courts and Legal Services Act 1990. It began a major review of
legal education in England and Wales in 1992, publishing eight reports between 1996
and 1999.
MacCrate - www.abanet.org/legaled/publications/onlinepubs/maccrate.html
A report, published in 1992, which criticised the state of American legal education. It
called for a practice, rather than theory, oriented approach to legal education, and
featured a statement of fundamental lawyering skills and professional values.
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