Demands to overhaul practical legal training in NSW have included suggestions that it be further mandated or abolished altogether, but a working group comprising leading practitioners has ultimately made a recommendation that falls somewhere in the middle.
Following extensive consultation with the legal profession, a working group led by the Legal Practice Admission Board’s (LPAB) Justice Anthony Payne has made a recommendation to improve the outdated and expensive elements of practical legal training (PLT) in NSW.
Together with Chief Justice Andrew Bell, Justice Jeremy Kirk and Emeritus Professor Michael Quinlan, Justice Payne and the LPAB concluded that PLT is “no longer fit for purpose” and that preparation of lawyers for the profession “can and must be better”.
Their new discussion paper leant heavily on survey results released by Chief Justice Bell in April, including that only 13 per cent of recent graduates believed the course to be reasonably priced and just 40 per cent considered the teaching methods to be “satisfactory”.
“The need for reform of legal education has been identified from time to time in the past. The results of the PLT surveys and subsequent consultations confirm that such a need for change has arisen with respect to PLT in particular and legal education more broadly.
“The future of the profession depends on it. The proposal made in this discussion paper is one [that] seeks to improve quality, lower barriers to entry to the profession, including costs, and make the overall training of entry-level lawyers better,” they said.
The recommended option would start with two short-term changes: a mandated three weeks of face-to-face and in-person teaching and workplace experience reduced from 75 to 15 days.
On the latter, the discussion paper noted the lengthier timeline leant itself to the “potential exploitation of law graduates”, who often complete work experience at little to no pay. Some graduates said they were also given empty promises of future work at the firm.
It also constituted a “very significant barrier to entry” for those from lower socioeconomic backgrounds or those who need an ongoing stream of income for themselves and their families.
Under this change, prohibitions on advanced standing for work experience prior to completion of degrees would also be removed.
Onto longer-term solutions, the working group said degrees should incorporate mandatory practical content and assessments, at least in subjects like civil dispute resolution and criminal law and procedure.
There should also be a change to the course schedule so that the Priestly 11 requirement of ethics and professional responsibility is undertaken in the final year of law degrees, and therefore closer to the time that graduates would be commencing in legal practice.
In one of the more major shake-ups within this recommendation, the discussion paper suggested a shorter PLT duration of three weeks, but there was room for argument that it falls between two and four weeks.
“The course will operate as a capstone, building on the practical skills included in law degrees and refreshing students with those skills as they enter the legal profession,” the discussion paper set out.
Given the “varied nature” of the profession, the working group also suggested that mandatory compulsory practice areas be switched to post-admission continuing professional development (CPD) requirements overseen by the NSW Law Society.
On that approach, graduates would complete around 15 additional hours in each of their first two years.
“The onus for post-admission supervised practice currently rests with supervisors who, after completion of the prerequisite period of post-admission practice, certify if a lawyer is competent.
“Reform is needed in this process such that supervisors are engaged in the identification of the appropriate CPD necessary for the lawyers under their supervision and more rigour is introduced into the supervision process by way of mandatory supervision reports, structured training plans and performance assessments,” the discussion paper said.
Other features include further employer involvement and supervision, and potential stricter qualifications for trust account management.
Chief Justice Bell said the review had a “clear and simple” goal to increase quality and reduce the costs of PLT.
“The review process undertaken to date strongly suggests that too much is currently being sought to be achieved under the existing PLT framework and the consequence that too little is achieved in terms of meaningful skills training and education,” Chief Justice Bell said.
Abolish or mandate: Other suggestions raised during consultation
The working group held five months of detailed focus group meetings with practitioners from across the profession, including those from regional and rural NSW, smaller firms, large legal groups, public sector lawyers, and the majority of NSW law schools.
One option that emerged was to abolish PLT together, with the discussion paper citing the costs and issues. However, the feedback was “not entirely negative”, with some students and employers reporting they continue to see some value in PLT.
This then led to the option for amendments to target the quality, consistency, and effectiveness of the existing programs.
The LPAB said it has taken the first step in this process by writing to accredited PLT providers to alert them to the issues that have been raised and requesting answers to specific questions. For example, the providers were questioned on the 15-day work experience.
Key areas for reform include the quality of practical teaching and assessment, mandated face-to-face teaching hours, a refresh of the PLT curriculum, collaboration with providers, and revising compulsory versus optional subjects and the schedule for completion.
Further, the consultations raised the possibility of mandating a requirement that those who teach PLT skills are currently practising and experienced lawyers within relevant disciplines.
“If law degrees were to incorporate more skill development, it may be appropriate to require teaching staff teaching those components of the degree to be currently practising experienced lawyers within the relevant discipline/area of practice,” the discussion paper said.
There was also the suggestion that PLT be developed based on specific discipline areas, especially for students who have already obtained graduate employment “or who have a very clear idea of the area of the legal profession within which they work”.
“For graduates who are clear on their future employer and area of practice, a specific PLT of this kind would avoid the unnecessary learning of skills which they will never need to apply in practice,” the discussion paper said.
A final option was to introduce a PLT exam prior to admission in much the same way the United States of America and the United Kingdom require pre-admission exams. An alternative would be to have this exam about two years after admission.
“This would create a standardised, competency-based assessment for all potential lawyers with the aim of ensuring that every entrant to the profession meets the required practical competencies before being admitted,” the discussion paper said.
Members of the profession were invited to make further submissions to the LPAB prior to 30 October.
A consultation and information session has been scheduled for 5 November in the Banco Court with Chief Justice Bell, Justice Payne, Justice Kirk, and Professor Quinlan.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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