Legal Education – the way forward?

Background

The landscape of the legal profession and legal education is changing. The Legal Services Act 2007 and the Legal Services (Scotland) Act 2010 have created new opportunities and challenges, not least opening the door to alternative business structures. In Scotland the new education and training regime for law students is in its infancy, as is the new framework for paralegals. In England the outcome of the Legal Education and Training Review in England is anticipated in the near future.
In these times of change questions arise as to how education providers can best prepare their students to meet these challenges. Regardless of the qualification provided educators want their students to have the best chance of gaining employment and thus need to ensure that they are given the opportunity to develop the relevant practical and professional skills.

The aim of the workshop was to consider some of these issues and opportunities by disseminating good practice and developing ideas on how to provide flexible learning for paralegals and law students that enhances their employability. The workshop took place on 29th April 2013 at the Open University in Scotland, Edinburgh. The workshop was chaired by Alison Miller of the Open University Law School and was attended by 13 academics from a range of HE and FE institutions including the University of the West of Scotland, Edinburgh College, Staffordshire University, Scotia Law Training / Stirling University and the Open University.

Presentations
Rob Marrs, Senior Policy and Development Manager (Education and Training Policy) at the Law Society of Scotland outlined the legal professional and educational framework in Scotland. He highlighted that only about 50% of those undertaking an LLB in Scotland are doing so for vocational purposes, the other 50% use it for other purposes so it is worth bearing this in mind when designing legal education. He added that one of the attractions of the LLB is the transferability of the skills developed in the degree. He explained that the route to qualification as a solicitor in Scotland changed in 2011 to be much more outcomes focused.

The Diploma in Legal Practice (PEAT 1) now has learning outcomes which each student must meet. This not only benefits students, but also employers as they now know that anyone who is starting a traineeship will have to have met at least these minimum standards to have passed the Diploma. The focus of the outcomes is five-fold: professional standards; communication; ethics; business, finance and practice management; and legal knowledge. There is also increased opportunity for students to specialise within the Diploma with 50% of the modules within qualification being elective. This ensures that students can build upon their legal knowledge making them more employable within their chosen field.

The traineeship (PEAT 2) is also now based on outcomes which are set to hone the knowledge and skills developed on the Diploma. There is formal monitoring every three months against these outcomes. This provides an opportunity for trainees and employers to gauge progress and to address any gaps.
The educational landscape for qualified solicitors has also changed with more flexibility in how they implement the required 20 hours of CPD each year. There is more online provision and generally more availability of CPD options.

Rob noted that the current economic climate may be affecting legal education and training as the number of people undertaking the Diploma have been down year on year since 2008 (c.30% reduction between 2008 and 2012) however, whilst traineeship numbers are down 2% in 2012 from 2011, they are up on what they were a few years ago.

Rob went on to outline the changes for paralegals. The key change in this area was the introduction of the Registered Paralegal Scheme in 2010. The scheme was developed by the Law Society of Scotland in conjunction with the Scottish Paralegal Association. The motivation for introducing the scheme was awareness of the growing professionalisation of the paralegal profession and the increasing numbers of qualifications available. The Registered Paralegal Scheme provides a defined career path and a means of professional recognition for paralegals. The scheme has a number of legal domains (areas of specialism) in which paralegal can register. To be able to register they must hold a relevant qualification (as defined in the scheme, and then undertake a one year of training period. If, at the end of this period, they meet the competencies outlined in the scheme they can become a Registered Paralegal.
Rob highlighted that the legal market is changing – the introduction of legal process outsourcing (LPO) has potential to create a substantial change in the market and is already affecting Scotland with one large LPO company based in Glasgow. The introduction of alternative business structures, if it happens, also has potential to change the market and could lead to the creation of paralegal owned firms. The introduction of more mass providers (e.g. the Co-operative) will also influence the market and increase the number of paralegals required. This means that paralegal education will become increasingly important.
Whilst paralegals are not regulated at present, their supervising solicitors are and the Registered Paralegal Scheme does provide a complaints mechanism. If a Registered Paralegal is found to have breached the terms of the scheme then they can be expelled from the scheme. Rob noted that so far only 1 complaint has been received and it was thrown out as being unfounded.

Tommy Cuthbert, National Relationships Manager at Skills for Justice outlined the unprecedented change in the legal market in England and Wales and in Scotland. This includes the introduction of alternative business structures, changes to legal aid, the recession, increase in fees for legal education, mergers of firms and court closures.

He outlined the Skills for Justice work developing Modern Apprenticeships and the context in which these were being introduced. In England and Wales there has been a commoditisation of legal services and an increasing search for new talent, not just among graduates but more widely. This increase in non-solicitor staff has meant that more staff providing legal services are unregulated. Skills for Justice launched the Higher Apprenticeship in Legal Services to meet this need.

Tommy highlighted that the smart way to provide legal services at reduced cost was to maximise the use of non-solicitor staff, including paralegals. He outlined that only 3 key areas are required to be completed by solicitors, all other legal work can be completed by non-qualified staff. This opens up opportunities for employers and paralegals.

Tommy suggested that there is a need for a pathway for schools leavers to gain entrance to the Registered Paralegal Scheme. The Skills for Justice Modern Apprenticeship could provide this pathway. It is an employer led and designed opportunity which will test competence and knowledge through a recognised structure. This apprenticeship is still in development and Tommy invited delegates to get in touch if they were interested in knowing more about it or becoming involved in the development work.

Rosemarie McIlwhan, Lecturer in Law at the Open University, discussed the research she conducted in 2013 with Alison Miller (also of the Open University) on ‘The provision of paralegal education in Scotland.’ (available at http://www3.open.ac.uk/near-you/scotland/p8_1.asp) This research built on Rosemarie’s 2010 research on ‘The provision of legal education in Scotland’ which outlined gaps in legal education generally and highlighted the issue of paralegal education specifically.

Rosemarie outlined how their 2013 research draws upon a survey of paralegals, employers of paralegals and providers of paralegal education. The research highlighted the issue of the term ‘paralegal’. Whilst the term ‘solicitor’ is a protected term under the Solicitor (Scotland) Act 1980, the term paralegal is not protected. This means that anyone can call themselves a paralegal regardless of what they actually do or what qualifications they have. The Registered Paralegal Scheme goes some way to addressing this as to be a Registered Paralegal you must reach a certain standard.

Rosemarie outlined that a number of qualifications for paralegals were offered in Scotland. She highlighted that whilst these covered a range of levels on the SCQF (Scottish Credit and Qualifications Framework) scale they were mostly qualifications at first instance and there were no real opportunities for further educational development for paralegals. She explained that the research had highlighted this as a gap in provision both in terms of needs of paralegals and employers.

Rosemarie also highlighted that gaps in provision exist geographically and in terms of flexible learning. The current provision of paralegal education does not cover the Highlands and Islands, nor does it cover the South of Scotland thus those wishing to undertake qualifications in these areas would need to travel to be able to do so. This is an issue as most paralegals surveyed as part of the research stated that they had undertaken their education whilst in employment. This highlights the other gap in paralegal education, which is the need for flexibility. There are limited options in terms of flexible learning as there are only a few providers who offer distance learning and none which offer online learning. The research highlighted that these are key areas where paralegals and employers would like to see further development.
There are also subject specific gaps particularly in relation to the newer legal domains under the Registered Paralegal Scheme and also in terms of transferrable skills. There was a need identified, particularly by employers, for business and management skills. Rosemarie highlighted that this would particularly be relevant if alternative business structures are implemented in Scotland and paralegals are able to become partners in a firm.

Discussion

Delegates raised a number of questions and issues. It was queried whether there is a need for a ‘senior paralegal’ within the Registered Paralegal Scheme or whether a qualification pathway is required i.e. to recognise paralegal’s on-going educational development.

The issue of the perception of the paralegal profession provoked substantial discussion. Delegates were clear that being a paralegal is a profession in its own right and is not a step to becoming a solicitor nor is it a lesser role. Many delegates commented on working with paralegals that were more adept in the law than solicitor colleagues. However delegates also commented that in their experience some people do not recognise being a paralegal as a distinct career choice and view it more as being a frustrated lawyer. Delegates felt that the Registered Paralegal Scheme and other such initiatives would help to address this view. Delegates also noted that some graduates were using their LLB and Diploma / Legal Practice Certificate (LPC) to access paralegal jobs in the hope that this would lead to a training contract however that firms were being very clear that this would not happen.

Regulation of paralegals was also an issue where strong views were put forward. It was suggested that formal regulation of paralegals may be required in the future, particularly if all of the changes in the legal profession mean that paralegals are working more independently. It was discussed that regulation of paralegals would provide protection not just for paralegals, their employers and solicitors but also for the public. Regulation would ensure that a person using the term ‘paralegal’ was qualified and competent to a certain standard, rather than at present where anyone can use the term.

Delegates discussed whether there is a need for dual qualified paralegals in the same way as increasing numbers of solicitors are dual qualified. It was highlighted that in many areas paralegals are already qualified to work across the UK because the areas of law are the same e.g. employment law. However it was also highlighted that as there are differences in the legal systems it may be beneficial to offer a module on comparative legal systems which would introduce paralegals from across the UK to the differences in the legal systems and which would enable them to work in all jurisdictions. It was noted that University of London offer a MOOC (Massive Open Online Course) and the Open University also offer free online courses (OpenLearn) in this area.

The issue of ethics was also raised. This is a key anticipated outcome of the Legal Education and Training Review in England, but it is already a core professional practice outcome in Scotland for solicitors and paralegals. In this context the question was raised about the ethics of unpaid internships and whether as educators we should encourage or support students to undertake such work as a means of enhancing their employability or whether we should take the view that such internships are unethical (and potentially illegal) so it is not in our students’ best interests to be involved in such practice. It was noted that the Law Society of Scotland will shortly be publishing guidance for solicitors on the issue of internships.

We would welcome further discussion of the issues, in particular the following questions:
1. Is there a need for further educational opportunities for paralegals, for example higher level qualifications beyond SCQF level 10, CPD etc.?
2. Is there a need for paralegal qualifications to be recognised / transferrable across the UK?
3. How can FE and HE institutions best meet the needs of paralegals and other law students in the current economic climate in a flexible manner and still ensure that they are prepared for the legal market of the future?

To reply please email Rosemarie.McIlwhan or Alison.Miller. Both of these email address end in open dot ac dot uk.
The Open University in Scotland
May 2013

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