Survival of the fittest? A reply

In the September 2006 Journal (14), Michael Torrance wrote an interesting article on the current disparity between the number of LLB graduates, the number of places on Diploma courses, and the number of law graduates awarded traineeships by employers. I intend to respond to a number of points which Mr Torrance makes and advance the alternative argument that competition for Diploma places is not necessarily a "bad thing".

1 “The situation [trainees with contracts but no Diploma place] presumes that academic performance directly translates into professional competence.”

I would suggest that a selection criterion based on academic merit is, essentially, the only valid, objective and transparent mechanism for selecting Diploma students.

There is an obvious minimum academic criterion which any prospective Diploma student has to meet. In comparison to the criteria needed for an LLB it is obviously less. However, in the event that the number of people exceeding that minimum academic level is greater than the number of Diploma places then it is clear that only the most academically qualified are offered a place on the Diploma. Any objection to this system surely also strikes to any LLB admission process, which will similarly "top slice" applicants.

By implying that there should be some vocational based assessment of a Diploma applicant, Mr Torrance introduces a degree of circularity which may not be helpful. If one accepts that the intention of the Diploma is to "teach" the more vocational skills a lawyer needs, then it is unclear how one could develop sufficiently robust, objective and clear criteria on how to judge an applicant’s vocational ability – the very thing which is sought to be taught. At least in the sense of ability to learn and be taught, academic ability is the most logical selection criterion.

2 Any viable alternative?

The answer to the question posed as to viable alternatives to the selection process is surely dependent on the answer to the underlying question of whether or not there is a problem in any event.

Mr Torrance appears to argue that essentially the existence of a surplus of LLB graduates unable to obtain a Diploma place is necessarily something which requires to be remedied. However, if that argument is logically extended, the results which would occur are not necessarily in the best interests of the profession.

Law has been, and still remains, a popular choice at undergraduate level – with many law courses being oversubscribed. Competition for places on an LLB course is generally fierce and a number of school leavers are disappointed. Once enrolled on an undergraduate course, students face further competition if applying for an honours course – with only the most academically able being allowed to study honours subjects.

Once a student completes the LLB, there is difficulty in then suggesting that judgment on academic grounds for access onto the Diploma is unacceptable. A student has been judged on ability throughout their student career, and to create the impression that the Diploma will not judge students on a set, objective criterion is not necessarily to the Diploma’s advantage. To further compound that by suggesting that Diploma places should be awarded as of right to LLB graduates is more than reckless. It is not clear if Mr Torrance is suggesting creating a new criterion for access onto the Diploma, simply increasing available places, or another means to redress what he sees as a bottleneck causing a barrier to the profession.

My own personal view is that there is nothing intrinsically wrong with competition amongst students. In that sense I think it is essential to move away from the position that not giving a number of LLB graduates a place on the Diploma is something which must be remedied. Mr Torrance accepts that the number of post-Diploma training contracts available is around 10% less than the number of graduates completing the Diploma; however, there is no suggestion by him that this disparity requires to be addressed or that those showing less academic ability are given traineeships. Whilst it is true that there are valid criticisms of the Diploma, I do not believe that one of those criticisms should be the fact that there is a disparity between LLB graduates and Diploma places.

Fundamentally, it may be that yet another tier of selection and necessary pruning of the numbers of those prospective members of the profession who are not, in comparison to their peers, academically suitable to a career in law, is a benefit.

3 Another form of Diploma

I do agree that the very structure of the Diploma requires to be changed. My own recent personal experiences, and discussions with those whom I studied, all reached the same general conclusion – that if traineeships were to start on day one of the Diploma a firm would receive trainees ready to work and learn (which could be done quickly). However, a number of Diploma students are disheartened by the end of the Diploma such that some wonder if a career in law is for them.

Mr Torrance implies in his article that the Northern Irish experience of post-degree training may be one which could be used as a basis for a new form Scottish Diploma. Whilst wholesale reform of the Diploma is in both students' and employers' interests, I do not believe that the Northern Irish experience is one which should be emulated. Whilst in private practice the timing of recruitment of trainees is market led, in the public sector (and smaller firms for that matter) recruitment tends to take place at the same time each year. In Scotland it is common for the public sector not to recruit trainees until they have started their Diploma. The same can be said for smaller firms where their requirement for a trainee one year cannot be predicted far in advance. To require a Diploma applicant to be in the position of holding a traineeship before they were considered for a place unfairly discriminates against those who want to work in the public sector or in smaller firms.

I think there is much which can be learnt (albeit with the necessary amendments of scale) from the Oxford Institute of Legal Practice (OXILP).

OXILP have run an LPC which is geared to City firms. It does touch on "non-City" areas such as domestic conveyancing and probate, but only lightly, and that is much to its benefit. This is a route which could be viewed as a serious alternative to the current Diploma. Even though the City LPC is in place, it is now the case that a number of Magic Circle firms are concerned that their trainees are not receiving sufficiently detailed training in a number of fields in which those firms practise. As a result a number of Magic Circle firms are moving LPC training in-house or grouping together to provide training on subjects not traditionally taught on the LPC – such as debt capital markets.

The profession is, as Mr Torrance rightly notes, moving away from the general practitioner providing advice on conveyancing in the morning and personal injury in the afternoon. There is an increasing decree of specialism which is of clear benefit to clients and the wider public. As a result there are now, probably, sufficient grounds for arguing that the Diploma should be moved, for some, either in-house or to a specialist Diploma provider.

For example, is there really a need for a trainee solicitor working in a large commercial firm in say, property finance or banking, to be able to draft a form of confirmation? It is surely more advantageous if facility letters, sale and purchase agreements and capital markets were taught to them.

Even if it is not agreed that the competition for Diploma places is a valuable tool in reducing the number of Diploma students who are not comparable academically to their peers, such that they may not make the best lawyers, then it may be more acceptable to agree that there is at least some value in discussing the option of running two parallel systems of post-degree education. For example, a Diploma similar to the City LPC for those with traineeships at a large commercial practice, and a more general Diploma, provided by the current providers, which gives a general introduction to the practice in a number of areas. If that were to occur, some of the issues raised by Mr Torrance may be addressed. Students with post-Diploma training contracts would not be discriminated against and a number of students would be removed from the potential pool of candidates for the Diploma places.

Starting assumptions

Whilst some of the arguments advanced by Mr Torrance are of interest, they work from the general presumption that competition and discrimination on grounds of academic ability are somehow unfair. It is an inevitable consequence of increasing LLB undergraduate courses that a lower percentage would be offered a place on the Diploma. Mr Torrance’s criticisms appear to suggest that the problems raised can be addressed by altering selection criteria for the Diploma or, worse, blindly engineering an increase in the number of Diploma places available.

Perhaps the better view may be to see this as an opportunity to fundamentally reform legal training in Scotland, especially if it is the Society’s intention to provide the profession with a population of trainees who feel they have been given the tools to enable them to take the profession forward and develop themselves as lawyers as well as the standing of Scots law.