Rees, Neil --- "Legal education and training: an evolutionary approach" [2000] ALRCRefJl 13; (2000) 76 Australian Law Reform Commission Reform Journal 60

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Reform Issue 76 Autumn 2000

This article appeared on pages 60 – 65 & 102 of the original journal.

Legal education & training: An evolutionary approach

When given the task of reviewing the federal civil justice system the Australian Law Reform Commission (ALRC) was asked in its terms of reference to consider ‘the significance of legal education and professional training to the legal process’. Professor Neil Rees writes* that the diversity of opinion unearthed by the ALRC about the content and regulation of legal education and training contributed, no doubt, to the formulation of a set of recommendations that are moderate and evolutionary in nature. Those recommendations, if adopted, are likely to encourage innovation, to foster research and to promote cooperation between the judiciary, the legal profession, the providers of legal education and the next generation of lawyers.

While the ALRC identified many different schools of thought about legal education, it highlighted the significant differences between those who believe we should take a fairly prescriptive approach, at a national level, to the content of all stages of legal education and those who seek further de-regulation of legal education, at least until further research demonstrates the value of national dictates about curriculum. The practising profession and the judiciary are well represented among those who advocate the establishment of a national regulatory agency, while many legal academics may be found within the ranks of those who favour further de-regulation and research into the educational needs of law students. In its final report, Managing justice: a review of the federal civil justice system (ALRC 89), the Commission acknowledges the public benefits that may flow from the establishment of a national body which sets standards for legal education, but wisely suggests that this step should not take place ‘until the major stakeholders work together constructively and develop a sense of commonality of interests’.¹

Brief summaries of developments in our law schools and of recent attempts to establish a national approach to the regulation of legal education and training may help to explain why the ALRC has chosen not to endorse the suggestion by the legal profession’s peak body, the Law Council of Australia, and a sub-committee of the Council of Chief Justices, the Law Admissions Consultative Committee (generally referred to as the Priestley Committee), that a National Appraisal Council be established with the functions of determining national standards for legal education, accrediting law school courses and determining the qualifications required of overseas lawyers who seek to practise law in Australia. A similar suggestion, by the same two bodies, was rejected by the Standing Committee of Attorneys-General in 1997.

The occupational licencing of lawyers – or admission to legal practice as it is known – is a function of the states and territories. In most parts of the country this task was performed, until recently, by the judiciary alone; the judges of the state and territory Supreme Courts determined the qualifications required for admission to legal practice. The membership of some admitting authorities has been expanded over the past few years, however, to include representatives of the practising profession and the law schools.

University law schools have traditionally provided instruction in the branches of legal knowledge (for example criminal law, contracts and property) which the state and territory admitting authorities have deemed essential for all lawyers. For many years intending lawyers completed a form of apprenticeship, known as articles of clerkship, either upon graduation from law school or, in some states, concurrently with university studies. In the 1970s dissatisfaction with the uneven quality of articles led to the creation in some parts of Australia of practical legal training institutes, which conducted compulsory courses in legal skills and the practical application of the knowledge of legal rules acquired at university.

Recent developments in legal education

The former rigidly staged approach to legal education and training has now ended, however, largely due to the rapid increase in the number of law schools since the de-regulation of higher education in the late 1980s. With 16 new law schools established in a decade Australia has experienced more diversity and innovation in legal education than ever before. At the beginning of this new wave of Australian legal education the then Chief Justice of Australia, Sir Anthony Mason, when speaking at the opening of a new law school in 1991, lamented the ‘depressing tendency towards uniformity of education in Australian tertiary institutions’ and called for ‘an expansion in the range of choices’.² Less than 10 years later the Australian legal education landscape is neither depressing nor uniform. Most of the new law schools have sought to establish a distinct identity, while many of the older law schools have re-designed their programs to remain competitive. Most law students now undertake combined degree courses or enter law school as graduates. The range of combined degree courses is impressive and some law schools, such as Griffith and Murdoch, have merged studies in law with other disciplines. Some law schools focus upon particular fields of law, most notably commercial law, while others have pioneered teaching in areas of emerging importance such as Asian legal studies, Indigenous law and law studies for paralegals. Nearly all 28 law schools now provide training in legal skills, as well as instruction in legal knowledge, and 12 have clinical legal education programs. Some law schools offer practical legal training courses as part of, or in addition to, law degree courses, while others, such as Newcastle and Flinders, have integrated skills training and experiential learning with academic studies in law.

Many of the old battles fought by legal educators are now over. The division between the ‘academic’ and ‘vocational’ stages of legal education – the ‘Pericles and the Plumber’ debate as Professor William Twining³ called it – no longer generates much heat as universities have embraced the need to include some vocational preparation in most courses. Despite some very useful research, in law, as in many other disciplines, we still lack a ‘systematic and developed body of knowledge’ about professional training and we need to do a lot more work in determining ‘what is involved in teaching, learning and assessing individual professional skills’.⁴ A particularly pleasing comment in ALRC 89 is its observation that when stipulating requirements for legal education ‘surprisingly little regard has been paid to the policies, debates and experiences which are shaping education and training in other learned professions’.⁵ We who teach law have much to gain from a closer association with those responsible for educating medical practitioners, engineers, accountants and nurses among others.

National regulation

For the most part the expanding range of law school offerings has been supported, albeit cautiously, by the state and territory bodies which determine the qualifications required for admission to legal practice. At the same time, however, some influential groups, most notably the Law Council of Australia and the Priestley Committee, have lobbied for the establishment of a National Appraisal Council, which would develop and apply national standards for admission to legal practice. It seems that the proposed National Appraisal Council would assume and extend the role which has been informally played by the Priestley Committee. That Committee of 11 people (nine of whom have been appointed by the Council of Chief Justices) has produced separate prescriptions for the academic and practical training components of legal education, known colloquially as the ‘Priestley 11’ and the ‘Priestley 12’ respectively. Even though the Committee and its prescriptions have no formal legal status the admitting authorities in all states and territories have adopted the ‘Priestley 11’ areas of knowledge as the minimum academic requirement for admission to legal practice. For a variety of reasons the Priestley Committee’s ‘prescription’ for practical legal training has not been adopted in most Australian jurisdictions.

While those who advocate the establishment of a National Appraisal Council have not always clearly explained the benefits to be gained by this proposal it seems that there may be at least three motivating factors. Firstly, it is argued that to promote a truly national legal profession, and the national licensing of lawyers, a national set of educational standards is required. Secondly, there seems to be a view in some quarters that standards of legal education have fallen, or are in danger of falling. The remedy for this perceived problem is seen to be uniform national standards of legal education which will alleviate the ‘lowest common denominator’ problem caused by mutual recognition legislation.⁶ These laws permit a person who is a legal practitioner in a state with ‘low’ standards to become a practitioner in a state with higher standards without any further education and upon registration alone. Thirdly, the ‘lowest common denominator’ problem is also seen to apply to overseas applicants who, again, by use of mutual recognition legislation may obtain their initial Australian licence to practise law in a state with ‘low’ standards and then move around the country thereby diminishing the overall standard of the Australian legal profession.

These arguments merit scrutiny, particularly because inadequate research and poor dissemination of information have often caused myths and legends concerning Australian legal education to abound. For example, until recently it was widely believed that the rapid increase in the number of law schools had led to Australia having more law students than legal practitioners and that, as a result, there were unacceptably high rates of unemployment among law graduates. These beliefs have been proved to be wrong by research undertaken by the Centre for Legal Education.

_{At the end of 1998 there were 38,370 people in Australia with a certificate to practise law. In the same year there were 23,760 law students in the country’s 28 law schools.}⁷ _{Thus law students represent only 61.9 per cent of the practising profession, a figure which has not changed markedly in the past 20 years.}⁸ _{A 1998 survey by the Centre for Legal Education revealed that there is virtually no unemployment among recent law graduates and that most of these graduates are working in law related jobs. Only one per cent of people who graduated in law in 1991 and four per cent who graduated in 1995} were unemployed at the time of the survey. Approximately 75 per cent of the graduates were in law related employment.⁹

As was the case with concerns about law student numbers and their rates of employment, anecdote, rather than research, may underpin the arguments which favour the establishment of a National Appraisal Council to set national minimum standards of legal education. Recent research conducted by the Centre for Legal Education for the NSW Legal Practitioners’ Admission Board reveals that very few overseas applicants are admitted to legal practice in Australia each year (for example, less than 100 in 1998). There is no evidence to suggest that there is any state or territory with ‘low’ standards which is preferred by overseas applicants as the initial entry point. Not surprisingly the vast majority of applications are made in NSW and Victoria.¹⁰

There is no reliable evidence to support any assertion that we have a domestic ‘lowest common denominator’ problem with practitioners in one state being of a lower standard than those in others, or with some law schools producing graduates who are not appropriately equipped for legal practice. No studies have been conducted which seek to measure the quality of legal practitioners in different parts of Australia, or which seek to contrast the quality of graduates from different law schools or from the same law school over time. Until this work is done there can be little force in the argument that national regulation is needed to address declining or uneven standards.

Finally, the argument that the goal of ‘national admission’ will be advanced by uniform academic and practical legal training requirements is highly questionable. The mutual recognition scheme, which was devised in the early 1990s and encompasses all professions and trades, appears to have been a sensible and successful response by a federal system of government to the emergence of national rather than state markets. In addition, some states have now established a ‘national’ practising certificate scheme which confers a right to practise law in one state if the person is the holder of a practising certificate in another state which is participating in the scheme.11 This scheme could become truly national if all states and territories were willing to participate. It is difficult to see how the further development of a national market in legal services is inhibited in any way by the current mutual recognition and ‘national’ practising certificate co-operative schemes.

It is not lack of agreement about national education standards that prevents or delays the introduction of a scheme which would allow an appropriately qualified person to be admitted to legal practice in Australia (as opposed to a particular state or territory) and then take out a practising certificate which permits him or her to practise law anywhere in Australia. Lack of constitutional power, combined with a lack of political will, prevents this development. As recently as 1997 the country’s Attorneys-General confirmed that the licencing of legal practitioners was a matter for the states and territories.12

In the absence of a sea change in political attitudes and a reference of constitutional power from the states to the Commonwealth (or a new and inventive use of an existing Commonwealth head of legislative power or Chapter III of the Commonwealth Constitution) there is unlikely to be, in the foreseeable future, any Commonwealth regulation of the legal profession. As long as state and territory admitting authorities continue to communicate with each other, as they have recently commenced doing, it is arguable, at a time of profound change, that there is great value in encouraging reasonable diversity in legal education at the state and territory level, especially until further research permits us to speak with a little more confidence about the educational needs of 21st century lawyers.

Legal education in Australia has travelled a long way in the 13 years since the last major national review, the Pearce Report.¹³ In 1990 Professor David Weisbrot, now ALRC President, wrote that a message to be drawn from that report is the ‘urgent need to move away from the narrow formalism and mediocre expectations which characterised Australian legal education and constricted its intellectual development’.¹⁴ Nearly a decade ago Sir Anthony Mason saw ‘no sense in duplicating throughout Australia standard form law courses’.¹⁵ At a time when unparalleled growth in legal education is starting to produce diversity and exciting research to better inform curriculum design, the ALRC, in declining to support the immediate establishment of a body to devise and enforce national standards, has sensibly foreseen the needless conformity which is likely to result from this step. Interestingly, the ALRC refers to the opinion of the Deans of the leading law schools in the United States who have criticised the American Bar Association national accreditation scheme because it ‘demands too great a degree of conformity, resulting in a depressing homogeneity and a lack (indeed a suppression) of creativity and diversity’¹⁶

The ALRC’s recommendations

To promote further co-operation between the relevant stakeholders – the judiciary, the practising profession, the law schools, law students and the consumers of legal services – the ALRC has devised what is has called ‘a suite of recommendations’.¹⁷ Three of the five recommendations concerning pre-admission education and training place the ALRC imprimatur upon developments which are already well underway.¹⁸

Recommendation 2 encourages the inclusion in university law programs of courses which will develop ‘high level professional skills’ and ‘a deep appreciation of ethical standards and professional responsibility’. While these approaches to legal education are now widespread in Australia’s law schools, the ALRC recommendation may provide some impetus to those few faculties that have been slow to change and it may promote more research into the most effective ways of teaching and learning professional skills and ethical standards.

In recommendation 5, the ALRC encourages state and territory admitting authorities to ‘render practical legal training requirements sufficiently flexible to permit a diversity of approaches and delivery modes’. Again, this is already happening, especially in New South Wales, where the practical legal training (PLT) requirement for admission to practice may be satisfied by undertaking a PLT course which is:

• integrated with academic studies (at the University of Newcastle);

• undertaken in the final semester of law school studies (at the University of Technology, Sydney);

• delivered either by way of face to face instruction or electronically (at the College of Law); or

• delivered, partially, by way of block, intensive teaching (at the University of Wollongong).

The recent decision by the Victorian admitting authority to accredit a PLT course at Monash law school, which will have a ‘pervasive approach’ to ethical issues, is a further welcome step in the direction supported by the ALRC.

In the absence of narrow national prescriptions PLT is an area in which we are likely to see more innovation with possible developments being large law firms developing their own courses, or contracting with law schools or others to provide tailor made courses, and more of the country’s 28 law schools joining the eight which already offer PLT programs.

In keeping with national and international trends the ALRC has suggested that law schools ‘engage in an ongoing quality assurance auditing process, which includes an independent review of academic programs at least once every five years’ (recommendation 3). As most law schools now undertake quality assurance activities of this nature, and as the Commonwealth government has signalled the establishment of an Australian University Quality Agency, the ALRC has simply added its voice to those who see benefit in regular review, accountability and appropriate measurement. In the future, broader circulation of the reports prepared by independent review panels may aid research and promote confidence among influential groups outside universities, such as the judiciary and the practising profession, that while law schools have many roles, they are committed to devising and implementing educational programs which will equip students for careers in legal practice and elsewhere.

The ALRC’s fourth recommendation concerning legal education calls on the Commonwealth Department of Education, Training and Youth Affairs to ‘give serious consideration to commissioning another national discipline review’. The last major national review of Australian legal education was conducted in the mid-1980s by a three person committee, chaired by Professor Dennis Pearce, acting under the auspices of the now disbanded Commonwealth Tertiary Education Commission.¹⁹

In an era of de-regulation of higher education many of the Pearce Committee’s recommendations now read as overly prescriptive and concerned with relatively minor points of detail. Nevertheless the Pearce report was a major watershed in Australian legal education because it examined law schools at such great depth and provoked debates which clearly influenced the development of the so-called ‘third wave’ law school.²⁰ As we are about to experience a ‘fourth wave’ of indeterminate size there is considerable merit in the suggestion that the Pearce process be re-visited.

Perhaps the most novel recommendation made by the ALRC is the suggestion that the Commonwealth Attorney-General bring together the major stakeholders in legal education with the aim of establishing an Australian Academy of Law which ‘would serve as a means of involving all members of the legal profession – students, practitioners, academics and judges – in promoting high standards of learning and conduct’.²¹ This is a suggestion of considerable merit for, as ALRC 89 demonstrates, there are many different, and sometimes conflicting, perspectives about the content and regulation of Australian legal education and training.

Issues for the proposed Academy

As Professor Ralph Simmonds has suggested there may be great value in establishing a national body which would undertake (or promote) research with the aim of developing ‘a world class legal education system in Australia’.²² The proposed Australian Academy of Law may be in a strong position to tackle some pressing issues. Funding, the core knowledge component of legal education, the value of devising and testing competencies and re-certification are just a few important current topics which would benefit from detailed research and lively debate among lawyers with different vantage points.

While lack of funds is probably the lament of legal educators of every era the current situation, which is acknowledged by the ALRC, whereby law students pay more money to the government each year for their studies under the Higher Education Contribution Scheme (HECS) than law schools receive to teach them is simply unfair. A coalition of stakeholders, under the banner of the Australian Academy of Law, may have a greater chance of remedying this anomaly in the country’s higher education system than have the law schools working alone.

The core knowledge component of legal education merits close attention at a time when the knowledge base is expanding and changing so rapidly. Much of the knowledge acquired in law schools is quickly dated. While it is vital that students retain knowledge and understanding of key principles – there are canons which every lawyer should know – there seems little point in urging students to retain outdated detail. However, they must know how to acquire that detail. While law schools already recognise this fact with their strong emphasis upon legal research skills, it is surprising that neither the Priestley Committee nor the state and territory admitting authorities have made any mention of legal research skills, or other key skills such as legal reasoning and writing, in their stipulations concerning core curriculum content.

It is likely that the Priestley Committee will replace its prescription for practical legal education with one that contains competency standards for new legal practitioners. In the absence of a body such as the proposed Australian Academy of Law it is difficult to identify a forum which has the capacity to ensure that debate about this important matter is constructive and inclusive. The ALRC in its earlier discussion paper saw benefit in an approach to legal education orientated towards ‘what lawyers need to be able to do’ rather than ‘what lawyers need to know’.²³ There is too little known about competency based training and assessment, as Christopher Roper has recently demonstrated,²⁴ for admitting authorities to mandate that all PLT courses be directed towards a set of competencies which have commended themselves to the Priestley Committee. By all means let us support the endeavours of those PLT providers which choose to orient their courses to a set of very specific competencies in various fields of legal practice but let us await the publication of research which contrasts lawyers trained to achieve specific competencies with those who have experienced a more generic approach to legal skills, before stifling diversity in PLT courses.

Given the pace of change in our laws and our legal system we will have to consider, sooner rather than later, whether admission to practice carries with it a lifetime right to practise law, or whether there should be periodic re-testing of legal knowledge and skills. The ALRC has supported the practice followed in some states, such as NSW, of requiring solicitors to participate in continuing legal education as a pre-condition to being issued with a practising certificate each year. This is, however, a gentle way of ensuring that legal practitioners remain abreast of changes in the law and regularly hone their skills. We must debate whether lawyers, like pilots and many other professionals, should be required to prove, at reasonable intervals, that they possess the requisite knowledge and skills to retain their licences to practise law.

The ALRC’s recommendations about legal education and training are very much in keeping with the ethos of our times: radical proposals involving the establishment of new government regulatory agencies are to be rejected in favour of evolutionary change based on appropriate research, a broadly disseminated knowledge base and consensus among key stakeholders. This is not always the way things have been done in the legal profession, which is strongly inclined to favour adjudication rather than undertake the longer and more difficult process which leads to consensus.

The recommendations made by the ALRC encourage us to reap the rewards which are already flowing from the expansion in the number of legal education providers in the past 10 years. With strong leadership from the practising profession, the judiciary and the law schools we have the capacity to benefit from a decade of innovation by establishing a world class legal education system.

*Professor Neil Rees teaches law at the University of Newcastle. He was formerly Dean of the Faculty of Law at Newcastle and a member of the NSW Legal Practitioners Admission Board.

Endnotes

1. Australian Law Reform Commission, Managing Justice: A review of the federal civil justice system ALRC Sydney 2000 (ALRC 89), para 2.77.

2. A Mason ‘Universities and the Role of Law in Society’ in J Goldring, C Sampford and R Simmonds (eds), New Foundations in Legal Education, Cavendish Publishing Sydney 1999, xii.

3. This is the title of Professor William Twining’s inaugural lecture in 1967 as Professor of Jurisprudence at The Queen’s University, Belfast. The lecture is published at (1967) 83 Law Quarterly Review 396.

4. W Twining ‘Taking Skills Seriously’ in N Gold, K Mackie and W Twining (eds), Learning Lawyers’ Skills, Butterworths London 1989, 3.

5. ALRC 89, para 2.86.

6. This scheme is discussed and the relevant legislation identified in G Dal Pont, Lawyers professional responsibility in Australia and New Zealand, LBC Information Services Sydney 1996, 29-30.

7. Centre for Legal Education, The Australian Legal Education Yearbook 1998, Centre for Legal Education Sydney 1999, 7.

8. Earlier data concerning the ratio of law students to practising lawyers may be found in J Disney, J Basten, P Redmond and S Ross (eds) Lawyers (2nd edition), Law Book Co Sydney 1986, 48.

9. S Vignaendra, Australian Law Graduates’ Career Destinations, DEETYA Canberra 1998, 22-24.

10. This information is drawn from preliminary (and unpublished) research conducted by the Centre for Legal Education for the NSW Legal Practitioners Admission Board. It is anticipated that the research will be published in due course.

11. An example of the scheme may be found in sections 48N - 48Z Legal Profession Act 1987 (NSW).

12. Reported in ALRC 89, para 2.46.

13. D Pearce, E Campbell and D Harding, Australian Law Schools : A Discipline Assessment for the Commonwealth Tertiary Education Commission, (4 volumes), AGPS Canberra 1987.

14. D Weisbrot, Australian Lawyers, Longman Cheshire Melbourne 1990, 135.

15. A Mason ‘Universities and the Role of Law in Society’ in J Goldring, C Sampford and R Simmonds (eds) New Foundations in Legal Education, Cavendish Publishing Sydney 1999, xii.

16. ALRC 89, para 2.54, footnote 69.

17. id, para 2.77.

18. ALRC 89 recommendations 2, 3 and 5.

19. Pearce, E Campbell and D Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (4 volumes), AGPS Canberra 1987 (the Pearce report).

20. The waves of Australian legal education are well described by C Sampford and S Blencowe, ‘Context and Challenges of Australian Legal Education’ in J Goldring, C Sampford and R Simmonds (eds), New Foundations in Legal Education, Cavendish Publishing Sydney 1999, 1-14.

21. ALRC 89, recommendation 6.

22. id, para 2.68.

23. ALRC discussion paper 62, Review of the federal civil justice system, ALRC Sydney 1999, 46.

24. C Roper, Foundations for continuing legal education: a guide to research, theories and ideas underlying continuing education for lawyers, Centre for Legal Education Sydney 1999, 95-121.