University of Technology, Sydney Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Technology, Sydney Law Review |
|
Anne Trimmer
President, Law Council of Australia
In September 2001 the Law Council released its major analysis of some of the issues the legal profession is likely to face over the coming few years. The Discussion Paper, entitled ‘2010: Challenges for the Legal Profession’,[1] raises many issues of relevance to law schools and the legal education of our future lawyers.
In this paper I range over some of the issues identified in the Discussion Paper for consideration and debate within law schools.
One of the key issues identified in the Discussion Paper in relation to legal education is the acute lack of funding of our university law schools. The effect of this lack of funding is to restrict the ability of the law schools to respond to the challenges presented by current and future legal practice and the ability to educate the lawyers of tomorrow to meet those challenges.
The restrictions in funding are the consequence of ten years’ application of a funding model under which ‘Law and Legal Studies’ were placed in the lowest funding cluster. This was based on an outmoded understanding of the teaching of law, namely the ‘chalk and talk’ method. This may have been true of law teaching several decades ago but since the 1970s there has been an increased emphasis on skills and the practical application of what has been taught through clinical programs. These require a different funding approach.
There is a further dynamic that will impact substantially on the content and teaching of law programs. Many of the traditional areas of law that form the basis of high street legal practice lend themselves to increasing commoditisation and the application of technology. There is nothing new in this thinking—Richard Susskind has been writing on this theme for several years.[2]
However the effect of commoditisation on legal practice has received very little debate within the legal profession and even less in the law schools. Given that the law schools are training the lawyers of tomorrow we need to understand the implications for legal education.
Are we training future lawyers who will have an expectation that they will be able to practise profitably in areas such as family law, property law, small business law, personal injuries law—the bread and butter of the high street legal practice? What skills will lawyers have to adapt to an environment where a significant part of that work can be delivered online without immediate lawyer input? It is already apparent that there is significant take up of online legal services—six per cent of the uncontested divorce market in the United Kingdom within nine months of the launch of Desktoplawyer in April 1999.
We need to understand the skills that lawyers will need in order to add value to legal services delivered using technology. These include the human skills of negotiation and dispute resolution. Some of our law schools offer programs in these areas. If funding were available to teach non-litigious dispute resolution, more of our future lawyers might be trained in these skills.
The Australian Law Reform Commission Report No. 89[3] recognised that law schools are moving to teach generic professional skills which can be used both in legal practice and in other occupations and professions. There is a strong argument in favour of law schools focusing on skills in fact finding, negotiation and facilitation as well as the discrete skills, functions and ethics associated with decision making.
The Law Council Discussion Paper finds that while the legal practitioners interviewed strongly supported retention of the traditional grounding in compulsory subjects, they also commented that many Australian graduates lacked problem-solving and communication skills.
This skills requirement becomes even more pointed when the overlay of technological change is applied. For lawyers to be able to adapt and provide value-added services, they will need a broader set of skills than is widely taught at present.
In a similar vein, there is a growing interest in the incorporation of ethics into the law degree, rather than as a stand-alone subject in the practical legal training program. As the Law Council’s Discussion Paper says, ‘the best approach fully integrates ethics into legal education rather than compartmentalising it. Such an approach should simulate the way complex ethical questions can arise in practice, expose students to legal attitudes/values and provide the best method for fostering an understanding of legal ethical obligations within students. Ethics does not stand alone but is interwoven with all aspects of the practice of law. The earlier this is inculcated into potential practitioners the better cognisant practitioners will be of the fact that their professional obligations are more important than any business imperative.’[4]
The growing emphasis on the need for education in legal ethics is reflected in a recently published handbook, Ethics for In-House Counsel, prepared by the Australian Corporate Lawyers Association in conjunction with the St James Ethics Centre. The handbook sets out the ethical foundations for the profession, the first of which is that the defining characteristic of each and every profession is a commitment to place the interests of others before those of its members, individually and collectively, and to act in a spirit of public service.
In keeping with this ethical focus, there is another element to a broader legal education that is significantly restricted because of poor funding. That is the participation by law students in pro bono schemes and the development of a pro bono ethos among our future lawyers. Over the past three decades we have seen some of our law schools provide valuable pro bono services through associated community legal centres. These benefit the community. They also benefit the students. One of the values that law students learn from pro bono participation is the nature of professionalism and what it means to be a member of a profession.
Another issue for the law schools identified in the Law Council’s Discussion Paper is the increasing push towards national standard setting in all aspects of regulation of the legal profession. An element of regulation is the development of uniform standards in the content of a law degree. This issue has been flagged for some time and with the recent adoption of uniform competency standards for practical legal training, which will become part of the uniform admission rules, there is heightened interest in developing similar competencies in the undergraduate program.
By writing of uniformity I am not advocating that all law programs be identical—their diversity provides competitive choice for students. However, minimum competency standards will ensure that all graduating lawyers have covered similar material with a similar degree of teaching resources. The Law Admissions Consultative Committee (LACC) will continue to focus on this issue with the participation of the Law Council of Australia, the Council of Law Deans and Australian Professional Legal Education Council, all of which are represented on LACC together with the representatives of the Council of Chief Justices.
The principal argument in putting forward a national appraisal scheme is that with the development of a national legal services market becoming close to being a reality, consumers of legal services should be able to assume that every practitioner has received a similar minimum standard of legal education.
The way in which law is taught is dependent entirely on the level of funding available to law schools. As the Law Council’s Discussion Paper points out, ‘the quality of legal education in the future will depend on the resources available to implement the most effective, flexible, professional teaching methods to teach and train lawyers to meet social, cultural and economic change.’[5] It is quite clear that the practice of law requires a high level of information literacy with an emphasis on electronic information searching and retrieval as well as the application of sophisticated software in day to day practice. Training students adequately in these skills requires substantial investment in technology within law schools and law libraries.
The recurring theme of funding constraints impacts on legal education in every area. Particularly affected is the ability of the law schools to attract and then retain some of the brightest undergraduates to an academic career.
In addition, the law schools see less cross-fertilisation between practitioners and academics than do many other professional faculties. This is a loss both to the practising profession and the academic profession. It is also a loss to the law students who often see the practice of law as remote and disconnected from the study of law.
The next few years will be a challenging time for law schools. They are already severely tested in trying to deliver innovative legal education programs capable of meeting some of the challenges referred to in this paper. Without an appropriate commitment to funding by governments and universities, our law schools will be pressed to provide the education that tomorrow’s lawyers will need.
[1]Law Council of Australia, 2010 Discussion Paper: Challenges for the Legal Profession, Canberra, September 2001, published, p.www.lawcouncil.asn.au/publications.html
[2]See for example, Richard Susskind, Transforming the Law: Essays on Technology, Justice and the Legal Marketplace, Oxford University Press, 2000.
[3]Australian Law Reform Commission Report No. 89, Managing Justice: a review of the federal civil justice system, Canberra, 2000.
[4]At p.87.
[5]At p.91.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UTSLawRw/2001/2.html