Up to speed?

Last month’s cover feature explained the aims of the new rules on professional qualification and continuing education, which come into force later this year. But how do solicitor firms and other bodies involved in training view their impact in practice?

There has, naturally, been significant input from practising lawyers throughout the five years of the project’s life through to commencement date (1 September 2011 for the admission rules and 1 November 2011 for the CPD changes). It could hardly have come this far otherwise. Does the result match the vision of those most closely involved, or meet the wishes of interested observers and consultees?

Into the former category comes Jim Moser, director of learning and professional development at Dundas & Wilson, a lawyer who now has a full time role organising learning and development for his firm’s staff, qualified or not. A member of the Society’s initial working party, his particular focus was on the new-style traineeship, though much has changed from his original paper. The idea for an ongoing “e-portfolio” of learning, for example, has emerged as the trainee’s “reflective learning blog”; and 200 hours’ trainee CPD (TCPD), including transaction-based learning, has become 60 hours’ TCPD.

“A key point”, he says, “is for the legal profession to get to a position where they see learning not as a barrier to business success but as part of ‘the work’, in order to get it done well and in a seamless way alongside the transaction. In other words, people should be doing legal work and learning, doing legal work and learning, in a seamless cycle. I don’t think it’s pure pie-in-the-sky thinking but it would involve behavioural and structural change, certainly of some size, for some people.”

Not quite joined up

What does he see as the weaknesses of the current regime? “Slightly bizarrely, we seem to struggle to learn well as a profession.” Moser is disappointed with our approach to training as it has emerged during the CPD era. “The 20 hours requirement is seen far too much as a target, as opposed to what it should be, which is purely a support for what should be needs-driven training efforts. People are simply filling their quotas without developing themselves at all. Sadly it’s also crept into our training of trainees, which has never really developed, in some cases, to meet the challenges of the new business environment.”

Ann Stewart, senior professional support lawyer at Shepherd and Wedderburn and heavily involved in planning and delivering training, points up the continuing disconnect between the Diploma and traineeship. “People have different views on how well the present system works, but there is a common feeling that it isn’t joined up, that at university (with some exceptions) lawyers aren’t taught how to be a professional in the modern commercial environment. On the Diploma they learn a few skills, but from a big firm perspective they aren’t necessarily prepared for the sort of firm where most will do their training.”

Observing that there appear to be differences in standards between the universities, she adds: “The day 1 trainee has always been a challenge. There is a wide range of capabilities and competences. Also, much is down to the individual and there is less attempt to tailor training to an individual’s personal needs.”

Moser adds that, taking trainees from both Scotland and England, he sees a generally more consistent quality of product coming in from the market-driven business schools such as BPP and the College of Law.

“One of the challenges for the Diploma schools is achieving consistent quality within the PEAT 1 programme. This includes teaching quality and quality in elective choice. Some people disagree with me on that, partly because they don’t consider as a very good thing, elective choices being driven by commercial needs. I don’t disagree with the need for learning underlying skills, but you could argue for example that people who are going to join this firm don’t need to do a criminal law elective. Criminal law practices could equally be insisting on quality course choices for their future trainees.”

Changing expectations

So will the PEAT 1-style Diploma programme, with its elective element of up to 50%, depending on provider, and outcomes based on what is expected of a new trainee, deliver an improvement?

Deborah McCormack, head of training and development at McGrigors, hopes that under PEAT 1 their new trainees “will arrive with a more solid understanding of the practice of commercial law in the wider business context”, and more focused on providing clear advice from the client perspective. But she also believes that not only the new trainees but also their supervisors need to begin with “a far clearer idea of the level at which they are expected to operate”, and trainees should have “the confidence to demonstrate the professional skills and behaviours encapsulated within the outcomes, under supervision, right from the outset”.

“From a legal firm’s perspective, PEAT 1 is about helping to prepare future trainees to hit the ground, at least walking briskly.”

Stewart agrees that much depends on PEAT 1. “If PEAT 1 is successful in producing a trainee with a better understanding of what it is like to be a lawyer and a professional, with the right commercial approach to clients and others, hopefully we are looking at developing a higher entry benchmark.”

Anna Bennett, Director, Professional Services at the WS Society, argues that while the new rules are undoubtedly an advance, “there is still a gap to bridge between academic, professional and business education”.

“Whether the changes will indeed produce a ‘Big Bang’ shakeup of the route to qualification will depend on whether they stimulate a shift in mindset”, she comments. “Some would argue that the PEAT 1 changes do not go far enough to break the mould of a Diploma model that, so it is said, suits the providers more than it does those attending or their prospective employers.”

She adds: “A true Big Bang would arise if and when the profession uses the changes to find a new, more direct and vocationally orientated route to postgraduate qualification, one that efficiently delivers the skills required in legal practice and engenders a new appreciation of the value of CPD.”

Bennett poses a challenge to the bigger firms, looking to experience in England & Wales: why not collaborate on a comprehensive PEAT 1 and 2 programme focused on “non-differentiating” skills and knowledge?

She continues: “What if such a programme allowed PEAT 1 to be completed during employment? Such an initiative could dramatically accelerate the progression from student to effective fee earner. That is the sort of development we would like to explore and it is one that would truly constitute a Big Bang.”

Still recognisable

How will PEAT 1 reflect in what happens during the traineeship? For Moser the key is moving from a “tick box” approach to taking a critical look at standards of training. He expects to see trainees having a clearer understanding of what they are aiming to achieve, and licensed TCPD providers having a freer hand to deliver targeted instruction.

McCormack sees it in terms of improved “ownership” by trainees of their own training and career development: “By that I mean, being clear about what they are expected to achieve through the training contract to become a competent, qualified solicitor – I think that should empower trainees to take more responsibility for their own development, which goes hand in hand with the support given by their employer.”

Stewart agrees that it’s not simply about putting the onus on the firm to identify individuals’ needs and provide appropriate training. “There may be a bit of a mindshift needed to think about training and on-the-job coaching in terms of outcomes in a more conscious way. Trainees will also need to take responsibility for making the most of learning opportunities that are available to them, and to be self aware and consciously self critical about how they did each day.”

She points out however that in essence we are talking about an improved system rather than something completely new and revolutionary. “It’s not that PEAT 2 is suddenly coming from a different planet with a completely different set of requirements. As a profession, we’ve always wanted to produce lawyers who would behave ethically, act honestly and think commercially. PEAT 2 is the latest iteration of the process. Many of the weaknesses and gaps in the previous system have been identified and PEAT 1 and PEAT 2 are designed to tackle most of them.”

Similarly as regards the outcomes-based assessments. “There’s a certain level of outcomes-based method at present without us necessarily realising that’s what is happening. But under the current regime you have to measure people on a 1-9 scale and that is too subjective a process…. While we don’t want the system to be overly prescriptive, it helps that there is now much more information about what the outcomes should be.”

McCormack too says that her firm already builds many of its training programmes round the core skills, standards and ethics that are now formally expressed in the outcomes. “Professional ethics and standards sit at the core of this, and so it’s helpful to see that the PEAT 2 outcomes enshrine what’s expected of the day 1 trainee and beyond. For me, this is the ‘law on being a lawyer’ and is vital to achieving a best practice approach across the profession… The outcomes themselves give a clearer framework for us to develop even more relevant on-the-job work experience and training.”

She emphasises that firms such as McGrigors view the introduction of PEAT 2 as very positive: “It’s an opportunity to review and continuously improve how we deliver a truly excellent on-the-job training experience for our trainees, with the focus on achieving diversity, breadth and depth in the quality work experience and client exposure we can offer. For us the outcome continues to be producing the best junior lawyers we can, for our own firm and for the profession.”

It isn’t just private firms that anticipate benefits. The Crown Office and Procurator Fiscal Service has accepted an invitation to become one of 12 organisations within Scotland to pilot PEAT 2 over the summer. According to Caroline MacLeod, Principal Procurator Fiscal Depute in the Learning and Development Division at the Scottish Prosecution College, it is anticipated that PEAT 2 “will allow COPFS to blend the bespoke training we deliver with the Law Society outcomes-based approach to working, making better use of resources and giving trainees valuable practical examples to assist their development”.

Necessary support

Bennett, however, sees a risk that the PEAT 2 regime could suffer the same limitations as self-certified CPD attendance, and will not change the attitude of the profession to lifelong professional development. “It would indeed be a pity if the changes do not have more far reaching results.”

With the big firms taking up a large proportion of the total trainee intake each year (about 60% of current trainees are in firms of more than 10 partners, and 35% in firms of more than 30), it is understandable that they should have a considerable say in designing the training regime. Will it work for their smaller cousins? Bennett suggests that, pending the more radical changes she envisages, the flexibility of the PEAT 2 structure will appear to suit larger firms and certain in-house training providers, as they already deliver “added value” training in addition to the soon-to-be-abolished Professional Competence Course, and will be able to pick and choose which TCPD programmes to deliver in-house, and what to outsource.

“The challenge is likely to be greater for smaller firms”, she says. “In essence, it is up to the firm and the individual trainee to plan the learning over PEAT 2 and seek TCPD opportunities around the individual trainee’s objectives.”

She believes it likely that some firms will not have the resource, or time, to sit down with their trainees and plan their TCPD programme, and a “package deal” from bodies such as the WS Society which are currently involved in the PCC may be an attractive solution. “It’s also a model that could be attractive to larger firms and could result in a collaborative initiative of the sort I referred to.”

For Moser, the outcomes are certainly measurable, but it means getting used to different ways of doing things. He accepts that smaller firms are likely to need support to get it right, but sees various possibilities, such as a role for local faculties, or guidance from a newly formed learning practice group.

CPD where it’s needed

The group support model is one that Moser sees also as having potential in the CPD context. “It should be possible for a partner in a small firm to identify similar training needs to those we work on – particularly if they get more support.” There are various groups, he believes, with the potential to provide this, instancing the work of the Property Standardisation Group, or the various emerging groupings of professional support lawyers. “What I’m talking about in terms of education is either one or several groups of different types doing the same thing. The Society, because of its resources, would struggle without support from other groups to do this alone, and I don’t think we should be expecting this from them in reality.”

Also on CPD, Stewart is excited about the new possibilities for online training. “It isn’t able to count towards CPD much at present but it’s the way many of us will be developing our CPD training offering.” Instead of going to a seminar and inevitably forgetting much of what you learned by the time you have a relevant transaction, “we will be more able to deliver ‘just in time’ training via our intranet. So when a lawyer gets a new instruction, where knowledge of a particular area of law or practice is required, they can access the training online when they need it. It could have a significant effect on how we learn and on the resources available”.

All our contributors appear to agree that what the new programme really needs in order to succeed is a proper appreciation among the profession that the process of professional education, however it is to be delivered, is a seamless and career-long one. As McCormack sums up: “PEAT 1 and 2, TCPD and CPD thereafter, are about a continuous and holistic approach to professional development. It’s about learning and practising your craft through experience, exposure and training, and then continuously updating and improving your knowledge and skills once qualified. If individual lawyers and their firms take joint responsibility for this approach to lifelong development, quality should be assured for the ultimate consumers of legal services, the brand of Scots law and those who practise it will be excellent, and the reputation of the profession will be protected.”