Training: the bigger picture

Even in other common law jurisdictions, the routes to qualification as a solicitor have diversified in a number of interesting ways, all of which should provide ideas when considering any reforms to the Scottish system of legal training. Civilian systems also have a variety of requirements for entrance into the profession, frequently with a more academic focus. Whatever responses are received to the Society’s current consultation it would be of considerable benefit if regard were had to other jurisdictions’ experience – both positive and negative.

France

Prospective avocats must undertake a Maitrise (Master of Laws), which requires four years of study. After three years, successful candidates will be entitled to the degree of Licence en droit (Bachelor of Law). The four-year degree also contains some elements of non-legal subjects such as economics. After obtaining the Maitrise, the prospective avocat must acquire a “certificate of aptitude for the profession of avocat” (CAPA).

The CAPA applicant must pass an exam before being allowed to undertake a one-year course of both theory and practice. During the year, the applicant also trains in an office of an avocat or another practising lawyer, an accountant, in-house for a commercial company, in court, a trade union, or with central or local government. The entrance examination comprises written and oral tests, with the CAPA certificate being granted only after a further examination at the end of the course.

On receiving the certificate, the prospective avocat then undertakes a period of practical training (stage). To be admitted to a stage the applicant must demonstrate evidence of good character and that they have secured a stage in an avocat’s office within the area of the local bar. On taking the oath of admission the applicant becomes an avocat stagiaire (trainee) under the supervision of the centre of professional training of the regional appeal court. The centre provides practical tuition in professional rules and customs and arranges for trainees to attend court hearings. The stage usually lasts for a minimum of two years.

During this time, a stagiaire may plead in court or give advice in chambers without restriction, although they will always be supervised by their principal. Finally, the stagiaire receives their certificat de stage (training certificate) after the completion of their practical training, subject to the approval of the centre’s governing body.

How the training is viewed

The legal profession in France has been criticised for not developing in line with the needs of modern French society by maintaining its traditional elitist status. A sharp division is seen to exist between the legal educational system and practice, with the university curriculum considered as too theoretical and the period of practical training lasting too long.

Germany

Students must have studied law for at least three and a half years with passes in civil law, criminal law and public and procedural law, before they can sit the first “state examination”. This consists of written and oral tests, the components of which vary from Land to Land.

Success in this exam leads to a Referendarzeit or Vorbereitungsdienst organised by the state. This is a two-year traineeship which must be completed before the second examination. Referendare (trainees) have to pass through a number of stages, involving practical experience with supervising practitioners in up to seven professional fields, each for at least three months. During this period the Referendar may practise on their own responsibility, including representing clients in court in civil cases if the supervisor approves. Each Referendar(in) must also participate in a study group in a relevant field led by judges and officials.

The second state examination consists of written papers and an oral on what was learned during the compulsory and optional placements. The oral is based on all the stages of training received. The failure rate for the second exam is 10%. Once a person has passed, they are called an Assessor and they are then free to choose their profession (solicitor, prosecutor, judge, etc). However, to qualify fully as a German Rechtsanwalt students must file an application for admission to the district bar association (Rechtsanwaltskammer), acting for the Ministry of Justice, in the district in which they propose to reside. They will then be admitted to a court of civil matters. As soon as a Rechtsanwalt(in) takes an oath to the Constitution they will be admitted to a court.

How the training is viewed

The criteria for qualifying as a solicitor were reformed in 2002, with only minor changes being made to the existing system. The reforms essentially reinforced the role of practical training before qualification and the need for increased specialisation earlier in the traineeship. A significant degree of consensus continues to exist regarding the system of legal education in Germany.

Republic of Ireland

Before beginning their legal training, aspirant solicitors must pass the preliminary examination, which is intended for non-graduates and contains papers on English, Irish government and politics, and general knowledge. Graduates (regardless of the discipline) and law clerks who have five years’ experience gain an exemption from the exam.

The first stage of legal training is sitting and passing the final examination – first part, which covers the core subjects that law degrees in other jurisdictions usually comprise. The Law Society of Ireland provides two full-time professional practice courses – PPC I and PPC II, both of which are practice-oriented and designed to equip students with the practical skills needed to be a solicitor. They are taught by a combination of practising solicitors and Society staff. The PPC I lasts approximately six months, covering a foundation course and modules in land law, private client, and civil and criminal litigation, amongst others. Students must have secured a training contract before starting it. On completion of the PPC I, a 24-month training programme commences at a law firm so that the applicant can gain in-office experience.

After completing 11 months’ training, the trainee attends the PPC II. This lasts for 12 weeks (counting as part of the 24-month programme) and the student sits a course in professional practice, conduct and management and a number of elective papers, which are fairly detailed in their nature and scope. As the trainee has spent nearly a year in practice they will have a better idea of what electives will be beneficial to their future career, and so will be able to extract the highest possible worth from the PPC II. It also allows trainees to bring back practical problems to the PPC II and discuss them with their tutors.

Trainees then return to their firms for a further 10 months’ in-office experience. After the 24-month programme is completed, they are eligible to enter the roll of solicitors after the training solicitor has sworn that they are fit and proper persons to become solicitors.

How the training is viewed

Legal training in Ireland is generally recognised as being of a high standard by students and practitioners alike, with the increasing tendency to offer more specialised tuition during the PPC II also being seen as beneficial. The Law Society of Ireland’s monopoly over trainees’ education is likely to be deregulated in the near future due to a sharp increase in the numbers of trainees and newly-qualified solicitors passing through the law school – partly as a result of a healthy economy and the opening up of the solicitor profession to applicants with non-law degrees.

New Zealand

To practise, lawyers must hold an LLB, which is usually achieved after four years of full time study and must include a module in professional ethics. Students often fulfil more than these minimum requirements and complete a double degree such as BA/LLB, or honours or postgraduate study in law.

After graduation, the practical Professional Legal Studies Course (PLSC) must be completed. It is a competency-based skills training programme designed to prepare trainees for legal practice, and is taught by experienced practitioners. The course prepares trainees for practice irrespective of the area of law in which they will be engaged. The course is offered by the Institute of Professional Legal Studies either as 13 weeks full time onsite or 19 weeks with 15 weeks of online study and four weeks full time onsite. The College of Law offers an 18-week PLSC of 14 weeks’ part time online study and 18 days full time onsite.

After completing of the PLSC, which can be taken before, during or after a period of work in a law office, the applicant is admitted to the roll of solicitors of the High Court of New Zealand. Before they can start practising they must also hold a current practising certificate issued from the district law society of their intended principal place of business.

How the training is viewed

Entry to the New Zealand legal profession continues to require an LLB degree, and the profession’s lack of experience of graduates from other disciplines has been criticised as a result of the profession’s conservatism. Regulation of the profession was reformed after legislation in 2003, but the criteria for qualifying as a solicitor remained unaltered as the current system enjoys a continued degree of legitimacy.

South Africa

A variety of different academic qualifications were recently abolished and replaced with a standard four-year LLB, with two-year LLBs available for students who have already obtained a three-year BA or BCom degree (majoring in law), or three years for graduates who took no legal subjects during their first undergraduate degree.

Before admission to the profession, aspiring attorneys must undertake practical experience either under “articles of clerkship” (in a private firm or for the state) or through community service at a law centre, for a three-year period if they don’t have an LLB, two years if they do, and only one year if they have studied full time for six months at a school for legal practice. 

All such trainees must also undertake a practical legal training course organised by the Law Society, either through the six-month school for legal practice course or for five weeks during or after the training period. During this, the applicant must also “write” the admission examination (which can be sat more than once) before being admitted as an attorney.

How the training is viewed

The current requirements for practical training were introduced in 2001 following a review. However, there has been criticism of the perceived underfunding of legal education, and that practical training is too theory-based with not enough instruction from qualified practitioners. The South African Government also recently published a draft Legal Services Charter which aims to reach agreement on future reforms with the profession, including entry requirements.

Upper Canada

Prospective solicitors in Upper Canada can only gain a place at a law school by finishing a four-year undergraduate degree in another discipline. They will then study for a three-year LLB before completing the licensing process, by which a person is admitted by the Law Society of Upper Canada. That consists of three elements: the skills and professional responsibility programme, the articling programme, and the licensing examinations.

The first element is a four-week, half-day course which is intended to provide basic practical skills that can be developed during articles. The programme must be completed, and all assessments passed, prior to articling. A period of 10 months is then spent articling, with emphasis on providing the applicant with meaningful training and exposure to work which will equip the applicant with sufficient skills to practise.

The licensing examinations are designed to ensure that the applicant has sufficient entry level practical skills, and focus on areas which have direct impact on the protection of the public and an effectual and ethical practice. The exam consists of a self-study, open-book exam, sat during the articling period. The student’s firm is required to provide sufficient study leave. The Law Society provides the materials needed for the exam, and online materials are also available. The exam tests knowledge of the law in the areas of real estate, business law, wills, trusts and estate administration, and planning.

After completion of the articling period and the exam, application will be made for membership of the Law Society. Before being called to the bar, the applicant will usually be required to demonstrate that they are of good character and repute.

How the training is viewed

The Canadian articling system remains popular throughout Canada and has received compliments from American jurisdictions regarding its perceived strengths. A period of practical training continues to be seen as a core component of training before joining the profession; future reforms are planned to ensure that articling evolves to remain in tune with a changing market and the increasingly diverse career aspirations of the profession.

Lessons for Scotland

The authors appreciate that a straightforward comparison between the current path to professional qualification in Scotland and the jurisdictions studied above would not be appropriate. However, a clear theme amongst these jurisdictions is the emphasis on commencing practical work experience, usually within a law office, as soon as possible after graduation, by integrating a period of training with full-time study in practical subjects, by requiring the applicant to sit entrance and exit exams, or by allowing the applicant to undertake their study of the practical subjects at the same time as gaining practical experience. The total period of professional training is generally two years after the initial academic stage (i.e. gaining a law degree) has been completed, which, as seen above, can take a variety of forms.

Such an integrated approach could be adopted in Scotland. Law graduates could be required to undertake a short full-time introductory course in cross-cutting subjects such as professional ethics and practice management, followed by a period of training involving either ongoing self-study (distance learning as used in New Zealand is an attractive and efficient option in today’s internet age) or day release for the study of modules. These (Diploma-style) modules could also perhaps be selected by the trainee, to reflect the content of the traineeship or the trainee’s career aspirations. The traineeship could end with a full-time course, again for a short full-time period, or a final examination of some description.

This would enable the aims of the current Diploma and traineeship periods to be achieved within a shorter and more integrated session. It would also ensure that prospective solicitors enter the job market more quickly, gain real practical experience augmented with practical instruction in their areas of interest, and also receive instruction in other areas which they might not encounter during a traineeship.

    Michael Torrance is currently undertaking the Diploma in Legal Practice at Edinburgh University and will commence a traineeship at an Edinburgh firm in July 2007. Michael J Robertson, BA (Hons)(Oxon), LLB (Edin) is a second year trainee at the same firm.

Any views expressed in this article are the authors’ own and do not in any way reflectthe views of the firm.

THE SOCIETY'S CONSULTATION: HOW IT WORKS

Logging onto www.lawscot.org.uk/ training/consult, you will find a simple four-page summary of the key issues and a questionnaire that takes you through every stage of training. This comprises tick-box answers and free-text responses. It is designed to try to ensure that as many people as possible are able to contribute. The focus of the questions progresses from the core values of professional training, through the basic stages of training that might be required, to professional and vocational courses, supervised workplace practice, and ends with where CPD might go in the future. There is also the opportunity to complete separate questionnaires on the detail of some of the key stages.