Legal education after law school: lessons from Scotland and England.

• Author: Cunningham, Clark D.
• Position: Professional Challenges in Large Firm Practices

INTRODUCTION

The symposium entitled "Professional Challenges in Large-Firm Practices" held at Fordham University School of Law on April 15, 2005 opened up a much-needed dialogue between law schools and law firms about legal education after law school. Keynote speaker Michael Greco, President of the American Bar Association, opened the conference by noting that: "[L]awyers are always going to be students, because the learning doesn't stop in law school. The irony is that when we become lawyers, we not only continue to be students, we simultaneously are teachers." (1) Greco's keynote was followed by a panel on "The Role of Law Firms in the Educational Continuum," which brought together three lawyers from large private firms, a lawyer from a large government law department, and two law professors. (2) As one of the two academics on the panel, I learned a great deal about the extent and sophistication of the legal education that takes place within law firms and legal departments. (3) The panel's discussions have inspired me now to propose that pilot projects be launched to increase collaboration between legal academics and law firms in the provision of legal education after law school. I suggest that such programs emulate the much closer partnerships that exist between the academy and the legal profession in England and Scotland. Promising areas for such collaboration in the United States include teaching and assessing competency in effective lawyer-client communication and professionalism in identifying and resolving ethical dilemmas.

During the panel, Donald Bradley, general counsel of a large California law firm, explained why the training of lawyers in law firms is now "dramatically different" than when he entered the profession over thirty-five years ago. (4) He described himself as "a product of on-the-job training ... sitting with a senior partner and a mid-level partner for about five years, [who were] trying to teach me what it meant to be a lawyer and the values I should possess and the skills I should develop." (5) Bradley attributed the demise of this kind of training to "time compression" in the practice of law caused by a variety of factors, including:

* client expectations that legal work be turned around in a very short period of time;

* technology that makes quick turn-around and responses possible;

* pressure on general counsels at corporations to control their budgets by using law firms in highly cost-effective ways; and

* intense competition among law firms to acquire and keep clients. (6)

According to Bradley, the above factors collectively result in "tremendous pressure on law firms with respect to their budgets, their discounts, lean staffing, capitalizing on expertise, knowledge management--anything to make the process more efficient and take less time." (7) Bradley then explained that, "[t]he overall result of these factors ... is clearly less time and more compression for mentoring, for on-the-job training. I think large law firms have recognized that, and that they have said, 'We have to compensate for insufficient mentoring by really ramping up our training programs.'" (8) In recent years, large firms have devoted considerable resources to in-house training programs. For example, in 2004-05 the Tax Department at Cravath, Swaine & Moore LLP provided a formal fifty-six hour training program covering areas of tax law "that are more easily learned in a classroom setting than by working on a deal," as well as "issues of practice and 'lore' that are often as important as knowledge of the technical provisions of the Internal Revenue Code." (9) In addition, Cravath's Tax Department encourages its associates to attend the forty-session training program offered by the Corporate Department. (10) Attendance at the classes in this program is not mandatory for Cravath associates, (11) but participation in a two-day New Associates Weekend, which includes "interactive training" such as a negotiations workshop and a session on Transaction Management, is required. (12) Other large firms seem to follow a similar pattern of mandatory retreats and interactional workshops for first year associates, combined with a series of optional classes for lawyers of all levels. (13)

The next part of this essay compares these American law firm training programs with two examples of post-law school legal education in the United Kingdom: (i) a three-year basic competency program in Scotland that law school graduates must complete to be licensed as lawyers and (ii) an accreditation scheme in England that assures proficiency in criminal defense representation.

BASIC COMPETENCY TRAINING IN SCOTLAND

Scotland offers a particularly good example of a system of post-law school legal education that is jointly designed and implemented by law schools and the legal profession to achieve basic competence to practice law. (14) The legal profession in Scotland is divided between a specialized trial bar called "advocates" (comparable to barristers in England), and a much larger group of practitioners called "solicitors" who handle transactional work, litigate in lower tribunals, and function as intermediaries between clients and advocates in major litigation. (15)

After graduating with a university degree in law, students who wish to enter the Scottish legal profession must complete a three-year course of professional training and education. (16) This begins with a course called the Diploma in Legal Practice ("Diploma"). The Diploma is a twenty-seven-week program that provides law students with practical skills and knowledge, and equips them for the two-year traineeship that follows the Diploma. (17) The course is provided by university law schools but is taught predominantly by practitioners. The largest Diploma program in Scotland is offered by the Glasgow Graduate School of Law ("GGSL"), a joint endeavor of Glasgow and Strathclyde Universities. (18) GGSL emphasizes "transactional learning," in which law graduates practice legal transactions in a learning environment that simulates the real world and are assessed on their work in that setting. (19) For example, there are no lectures or examinations in estate planning; instead, students focus on two transactions: winding up the estate of a decedent and drafting a will. (20) GGSL, an internationally recognized leader in the educational use of information technology, has also created a virtual town on an internal website, complete with history, maps, businesses, a host of citizens, and sixty-four different law firms. (21) Each firm consists of four students who use the website to conduct firm transactions, send and receive correspondence, maintain the firm's case management system, and keep a personal log that is reviewed by assigned faculty. (22)

Either before the Diploma or during it, students are required to obtain a traineeship with a practicing solicitor or a legal service employer in Scotland. (23) After completing the Diploma, students enter into a two-year training contract with this employer. (24) The Law Society of Scotland monitors the traineeship: trainees must submit written reports of their work and quarterly review forms. (25) Together, these materials form part of the "ongoing assessment of the training program, known as the Assessment of Professional Competence." (26)

Six to eighteen months into their traineeships, trainees are required to take the Professional Competence Course ("PCC"). (27) The Law Society of Scotland designed the PCC "to build upon the knowledge and skills developed in the Diploma, and it relies upon the office experience that trainees gain in their traineeship." (28) Most trainees will then return to one of the universities for the PCC, although some large law firms provide in-house courses for their own trainees. (29) At the start of the second year of training, trainees obtain "a restricted practicing certificate" that authorizes them to litigate under certain conditions. (30) After the trainees complete the two-year training contract, they can apply for "a full practicing certificate and entry to the profession." (31)

PROFICIENCY ACCREDITATION IN ENGLAND

The English legal system provides an example of an unusually ambitious and successful program that increases the proficiency of practicing lawyers: the Criminal Litigation Accreditation Scheme administered by the Law Society of England and Wales ("Law Society"). (32) One commentator described the Criminal Litigation Accreditation Scheme as "likely the most detailed accreditation scheme anywhere run by a representative body of the legal profession regulating the quality of its own members' criminal work." (33) It was developed in response to an influential study of the legal services that defendants received after arrest. (34) The law professors who conducted the study published their findings in 1994 in a book entitled STANDING ACCUSED: THE ORGANISATION AND PRACTICES OF CRIMINAL DEFENSE LAWYERS IN BRITIAN. (35) The study was highly critical of the standard of practice among criminal defense lawyers. (36) In response, in 1995 the Law Society created a multi-step program (called the "Police Station Qualification") that defense lawyers must complete to be accredited to advise arrestees at police stations. (37) First, the candidate must observe a qualified lawyer giving advice in two cases at a police station and document their observations in a portfolio. (38) Second, the candidate must provide advice in two other cases under the supervision of qualified lawyer and record those cases in the portfolio. (39) Third, after the portfolio has been reviewed and approved, the candidate enters a twelve-month probationary period in...