Our #LegalMosaic series collects insights from the brilliant mind of Mark Cohen. This piece can also be found at Forbes.
The Solicitors Regulation Authority (SRA), the regulatory body that oversees the legal profession in England and Wales, has enacted a major overhaul of legal training and solicitor licensure to take effect in 2020. Gone is the requirement solicitors must acquire a law degree for practice. In its place is a competency-based examination offering different paths to becoming a solicitor. The exam will not spell the end of traditional legal education in the UK—no doubt many aspiring solicitors will opt for some form of traditional legal study. But the exam’s emphasis on competency based learning and its experiential requirements will undoubtedly serve to update outdated legal curricula, reduce law student debt, and better serve the public by ensuring new entrants to the profession have core competency and a modicum of practical experience. If this sounds like medical training, it does to me, too.
A Look At the Solicitors Qualification Exam
The Solicitors Qualification Examination (SQE)– ‘super exam’ as it is sometimes called—has competency based and experiential components that can be acquired inside or outside university—or a combination of the two. By providing a more open-ended, non-monopolistic (if not elitist) choice of paths to licensure, SQE represents an overhaul of British legal training. It shifts focus from course work at expensive universities to competency based experiential learning that can be obtained more efficiently, cost-effectively, and usefully by apprenticeships, jobs that require critical thinking, online learning, and other ‘real world’ means.
The SRA first consulted on its intent to adopt a super exam in 2015. Since then, the regulatory body has conducted thousands of interviews—with university administration and faculty, law firms, members of The Law Society (a trade association similar to the American Bar Association), and the public. The re-regulation of UK legal training has drawn predictable opposition from the once self-regulated universities and Law Society. Crispin Passmore, the SRA Executive Director, told me that the SRA ‘focuses on public interest objectives and assesses legal regulation for the modern world. That means creating standards that serve the public. We are more concerned with lawyer competency than the route one takes to acquire it, and the SQE reflects that.’ This is a polite way of saying the incumbent UK legal education model needs a reboot, and that’s precisely what it’s getting.
The Super Exam tests candidates for knowledge and skills. To pass and qualify as a solicitor, candidates must demonstrate:
Doctrinal knowledge of law–property, contracts, torts, etc.
- Basic legal competency– client interviews, advocacy, case and matter analysis and legal research.
- A degree or an equivalent qualification/experience;
- Completion of at least two years of qualifying legal work experience;
- Satisfactory character and suitability
The Super Exam does not dilute legal training; it is additive and brings it in line with the modern world. Becoming a solicitor will no longer require going into hock to pay off school bills or having a trust fund. This will open up the profession to more diverse candidates. The UK—like the U.S. and other democracies—has an access to justice crisis caused in no small part by the high cost of legal services. There are several reasons for this: (1) lack of competition; (2) inefficient adoption of technology and process/project management to streamline legal delivery; and (3) the high cost of legal training and the student debt it creates. The SRA’s creation of new avenues into the legal profession—more client-based, cost efficient, and inclusive—will ameliorate each of the above-mentioned legal cost-inflators. Promising legal candidates unwilling or unable to pay the freight and to bear the lost opportunity costs of attending legal programs now have other paths to the legal profession.
The Importance And Value Of Independent Regulators
If you think you’ve heard about the SRA before, it’s likely in connection with the UK’s Legal Services Act of 2007 (LSA) that created it. The LSA is best known for allowing alternative business structures (ABS) where ‘non-lawyers’ can invest in law firms, share profits, and even go public. LSA and ABS came about as a result of a two-year independent, no-holds-barred review of the legal industry authorized by Parliament and conducted by Sir David Clementi, a banker and CEO of an insurance conglomerate. ‘The Clementi Report’ became the backbone of the LSA and its re-regulation of the legal industry. It determined that the self-regulated legal industry operated as a guild that failed to serve the public adequately. The LSA promoted competition with ABS. It also created the SRA to oversee lawyers, effectively doing away with self-regulation by creating a strong, independent regulatory body. It’s no surprise, then, that after tackling a self-regulated legal marketplace, the SRA would turn its focus to legal education that—like legal delivery—was broken.
Crispin Passmore explained another powerful ingredient of the Super Exam–it will mine and share test results data. This will be useful information to the public—and firms from High Street to The Magic Circle—to evaluate talent. The data will provide a more objective evaluation of professional competency and grasp of legal knowledge than the current licensure process does. Pedigree will remain important to some, of course, but young solicitors will now be compared on more objective criteria. This means that the legal profession will be more open to diverse candidates than ever before, and this is critically important to the preservation of the rule of law and public confidence in lawyers.
Will The U.S. And Other Advanced Economies Follow Suit?
The American Bar Association, the U.S. counterpart of the UK’s Law Society, has three times considered and rejected legal re-regulation (some form of the LSA) during the new millennium. The principal reason for regulatory stasis is self-regulation; lawyers regulate lawyers. There’s more than a hint of irony in this because lawyers cite ‘conflict of interest’ and ‘the threat of undue influence’ as the principal reasons not to allow non-lawyers to have an ownership stake in business. This barely passes the giggle test since corporate (in-house) lawyers can and do engage in profit sharing with their clients and often work for—and have an equity interest in—public companies.
It’s time the U.S. legal industry had an independent regulator like the SRA. That would serve the public and lawyers well. It would also shake up legal education that is crazy costly, outdated in its curriculum, out of touch with the marketplace, and seemingly indifferent to a majority of graduates that lack practice skills, confront bleak job prospects, and are saddled with six figure debt. Law School Deans will tell you that they are hamstrung by faculty bent on keeping things as they are. Why not? The average law school faculty member teaches eight hours per week, reserving the remainder of time for ‘research’ and other activities—including outside consulting. They earn six-figures during the six months law school is in session. Many have never practiced and have little knowledge of or interest in the marketplace.
Self-regulation of lawyers in the U.S. may soon come to an end. The United States Supreme Court addressed the self-regulated dental industry in North Carolina State Board of Dental Examiners v FTC, 574 US -(2015). The Court held that a state occupational licensing board that was primarily composed of persons active in the market it regulates has immunity from antitrust law only when it is actively supervised by the state. The self-regulated legal industry should take note. Once the legal profession has an independent regulatory body, there’s little doubt that legal delivery and education will be materially overhauled—as it should be.
The UK is advancing the legal profession into the 21stcentury. The SRA has the independence—and guts—to effect changes in legal education and delivery designed to serve the public. In the end, those changes will help society and lawyers, too. As Crispin Passmore said, popularity has never been the objective of a regulator.’ Amen.
U.S. Legal education is in dire need of material reform. This has not happened—nor will it—absent independent regulators. The legal industry’s greatest conflict comes from its self-regulation. Self-regulation is adversely impacting most law students by failing to provide them practice skills, adequate career guidance, and a reasonably priced education. Worse still, law school is—in almost all jurisdictions—the only route to licensure. That discourages applications from qualified candidates and makes many who enrolled in law school sorry they did. It’s time for a British reboot.