Following on from last month’s newsletter, we’ve put together the following list to examine different regulator responses to the COVID-19 pandemic. Here it is interesting to note the development and changes, as regulators begin to get a grasp on the crisis and develop innovative responses to meet the changing environment. If you have any questions or best practice for the rest of the ICLR community, please do get in touch, and we will be happy to include any of these in the next newsletter.
Illinois has introduced executive order 2020-14, this satisfies notarial requirements that a person must “appear before” a notary public if a two-way audio-video connection is used. It also allows documents to be witnessed through the same technology.
The Law Society of New South Waleshas decided to run it’s annual Law Careers Fair as an online event, rather than cancelling it. The event will use zoom to create virtual presentations, with individual video booths and company landing pages replacing exhibitor booths. More information about the event is available here. The Society has also decided to reduce its $410 membership fee to $10, for the 2020-2021 period, allowing members to redirect funds to priority areas during the crisis.
The Law Society of Hong Kong has announced that civil hearing will take place remotely, with all other non-essential court hearings currently adjourned.
The Legal Sector Affinity Group which is made up of all the legal supervisory authorities in the UK, including the Law Society, Bar Council, CILEx, and the Law Society of Scotland, has released an advisory note on preventing money laundering during the crisis. The note discussed the increased risk of money laundering at the current time and what checks can be put in place to mitigate this.
The Council for Licensed Conveyancers in England and Wales is to allow members to defer fee payments, following the near-complete standstill in the UK property market. Members will be given the option to defer paying their practice fee and compensation fund contributions for April, May and June, which can be paid off over the following 4-12 months.
The California State Bar Board of Trustees has written to the California Supreme Court offering options and recommendations for the June First-Year Law Students’ Exam and the July Bar Exam. Full letter available here. Whilst the State Bar of Califonia has put in place emergency measures waiving late payment fees, as well as extending payment deadlines for membership fees and compliance deadlines.
The Law Society of Ontario has cancelled the lawyer licensing examinations and the call to the bar ceremonies due to take place in June. The society has said that alternative summer/autumn examination dates are being explored and that the administrative aspect of the call to the bar process is being undertaken remotely, allowing students to progress with their careers, with a celebration planned later in the year.
The Law Society of Saskatchewan and the Law Society of Alberta have temporarily reduced the articling requirements to a minimum of 8 months, instead of the previous minimum of 12 months, preventing a backlog of articling students due to limits created by coronavirus. Full statements available here and here. The Law Society of Alberta has also introduced changes allowing articling students to work remotely, as well as giving instructions on the supervision students doing this.
The American Bar Association has created a “Task Force on Legal Needs Arising Out of the 2020 Pandemic”, which launched a website on the 3rd of April to provide resources and information on the ongoing crisis and how this relates to the law. Statement available here, website available here. The ABA has also backed calls to adopt emergency rules that would allow recent and upcoming law school graduates who cannot take a bar exam because of the COVID-19 pandemic to engage in the limited practice of law, under the supervision of a licensed attorney, these individuals would have until the end of 2021 to practice without passing the bar exam. They hope this would limit the disruption to students careers, and help prevent the widening of the access to justice gap. Full statement available here.
The Ministry of Law (MinLaw) announced on 30 August 2018 that it has accepted in principle the recommendations of the Committee for the Professional Training of Lawyers on strengthening the professional training regime for lawyers in Singapore. The key recommendations include: (a) uncoupling admission to the Bar from the completion of a practice training contract; (b) lengthening the practice training period from six months to one year; and (c) raising the standard and stringency of Part B of the Singapore Bar Examinations. The Committee also made 17 other specific recommendations to address discrete issues within the professional training regime. The implementation of these recommendations will help raise the quality of legal training and better equip law graduates with the necessary expertise to meet the demands of the future economy and society.
MinLaw will work with stakeholders, including the Law Society of Singapore and the Singapore Institute of Legal Education, on the implementation of the recommendations. The three key recommendations will be implemented from the 2023 session of Part B of the Singapore Bar Examinations onwards, to give the industry time to adjust. The majority of students currently in law school will not be affected by these changes.
The SRA has appointed Kaplan as the assessment organisation to develop and run the Solicitors Qualifying Examination (SQE).
Selected following a rigorous, year-long process, Kaplan provides education, training and assessment across professional services, including in law, financial services, accountancy and banking. It has direct experience of assessment within the legal sector in England and Wales as the provider of the Qualified Lawyers Transfer Scheme (QLTS). Kaplan will not provide training for the SQE.
The SRA and Kaplan will work with stakeholders from across the legal and education sectors to develop and test the SQE. Kaplan will then run the SQE on our behalf. They have been appointed for a period of eight years from the introduction of the SQE.
The SQE will provide a single common assessment for all aspiring solicitors. It will be introduced, at the earliest, in September 2020. The costs of the assessment will be determined once the final design is fixed, although we are aiming to provide guidance on indicative costs before then.
The Netherlands Bar (Nederlandse orde van advocaten, NOvA) is consulting on the future of professional education and training for lawyers.
Currently, in order to qualify to practise law in the Netherlands, an individual must have 1) a Bachelor’s degree in legal studies, 2) a Master’s degree in Dutch law 3) have completed three years of training at a law firm as an advocaat-stagiaire. The training period is accompanied by basic and further legal training called the ‘Beroepsopleiding Advocaten’ (BA). The BA covers civil, administrative and criminal law and a lawyer trainee chooses the area of law that best fits his or her chosen area of future practice as their major and a second area as their minor. In addition, the trainee lawyer must choose a number of electives as well as undertake ethics training. The implementation of the BA is outsourced to external education and training providers, approved by the Netherlands Bar (NOvA).
NOvA is currently undertaking a public consultation procedure on the future design of the BA called ‘Consultation BA2020’. The reason for conducting this consultation is to ascertain what abilities and knowledge a starting lawyer might need to have in 2020. The main points of focus of the consultation are the following:
The possibility of a bar-like entrance exam to the BA: how can the BA avoid duplicating/repeating the teaching of juridical content (the juridical basics) that should be taught in university? If duplication could be avoided, hopes are that the BA, and therefore the service and skills of the starting lawyer, would be of a higher quality. Also, this could lead to cheaper and less time-consuming training, which is more practical and less theoretical. A point of discussion in this area is whether this BA entrance exam should also, besides juridical content, include soft skills and analytical skills.
The potential for closer cooperation in the (practical) training within the BA and the training the firms provide to their lawyers-to-be.
(After a broad-based bar exam) A greater emphasis on juridical specialization in the training, as NOvA believes specialization is key to further improvement of the quality of Netherland’s lawyers.
A stronger emphasis on ethical aspects of the profession.
The consultation ends 18th September. After a thorough analysis of responses the NOvA board will decide on whether and how the current vocational training might be changed. You can read more about the consultation on NOvA’s website.
Contributed by: Lucas Korsten, policy adviser, The Netherlands Bar
In the article which follows, Heidi Chu, Secretary General of The Law Society of Hong Kong kindly provides us with an overview of the ‘state of play’ of legal education and training reform in Hong Kong.
The present system of legal education and training in Hong Kong involves three stages, namely:
an academic stage (a qualifying law degree e.g. Bachelor of Laws “LLB” or Juris Doctor “JD”);
a vocational course (i.e. the Postgraduate Course of Laws (“PCLL”));
a workplace apprenticeship (i.e. a two year training contract with a law firm for intending solicitors or a one year pupilage at a barrister’s chambers for intending barristers).
The completion of the PCLL is a pre-requisite to entering into a trainee solicitor contract for intending solicitors. The PCLL is defined under the statute as the course provided by three specified universities (“PCLL providers”). The PCLL providers currently enjoy self accreditation status and are empowered to set their own admission criteria and conduct and mark their own examinations, subject to the PCLL benchmarks issued by the Law Society. The PCLL providers have thus become the gatekeepers to the legal profession upon both entry and exit of the PCLL, which is the entry point to the traineeship leading to admission as a solicitor.
In view of the changes that had taken place over the years including the increase in the number of PCLL providers, the varying qualifications of PCLL applicants, the widening of the scope of services provided by solicitors and the growing number of foreign lawyers in Hong Kong, the Law Society considered it important to ensure consistency in the assessments and standards of entrants to the solicitors’ profession. The Law Society has therefore proposed to introduce in 2021 a common entrance examination (“CEE”) in the format of centralised assessments for law graduates to qualify as solicitors in Hong Kong. This proposal will not affect those intending to become barristers in Hong Kong as the proposal is not to abolish the PCLL. The Law Society is finalising the details of the proposed CEE.
On the other hand, the Standing Committee on Legal Education and Training, which is a statutory committee set up to oversee legal education and training in Hong Kong, has commissioned a comprehensive review on the legal education and training area with a view to enhancing professional standards in the legal sector as a whole. The review is still on-going and a report is expected by the end of 2017.
Contributed by: Heidi Chu, Secretary General, Law Society of Hong Kong
In April 2017, the SRA announced that it would be introducing a new national licensing exam for those wishing to be admitted as solicitors of England and Wales, the Solicitors Qualifying Examination, or the SQE.
Where did this idea come from? And why is reform necessary?
What is the current system for qualification as a solicitor of England and Wales?
To understand the case for change, it is important to know how solicitors qualify at the moment.
The diagram below sets out the current routes to qualification. There are lots of them! The most common route requires individuals to take either a Qualifying Law Degree (QLD) or a one-year post-graduate conversion course (the Common Professional Examination/Graduate Diploma in Law (GDL)), followed by the Legal Practice Course (LPC) and then a two-year period of recognised training (or training contract). We authorise education and training providers, and specify course requirements. But each university offering these qualifications sets and marks its own assessments.
The Legal Education and Training Review
The genesis for our educational reform programme can be traced to the independent review of professional legal education in England and Wales, conducted between 2011–2013, the Legal Education and Training Review (LETR). [i] This was commissioned jointly by the SRA, the Bar Standards Board and the regulatory arm of the Chartered Institute of Legal Executives.
The background to LETR was that no review of legal education and training had taken place for many years. During that period, the regulatory framework, the markets for legal services and the market for legal education had all changed. LETR aimed to evaluate whether the legal education and training system was still fit for purpose, and whether it supported the regulatory objectives set out in the Legal Services Act 2007.[ii]
The independent research team carried out a detailed literature review, and interviewed a wide range of stakeholders. They concluded that the primary focus of legal regulators was on regulating pathways to qualification, rather than on assuring standards. They pointed out that we specify these pathways in detail, while permitting a large number of organisations to train and assess would-be solicitors, including universities who provide education and vocational training, and employers who provide work experience and on-the-job training. The current regulatory regime includes an elaborate system for approving and monitoring the provision of education and training by these organisations. But because it regulates inputs, such a system cannot directly assure consistent standards of competence among qualifying and practising solicitors. Worse still, it creates rigidity and barriers (particularly around cost and access to training contracts) which risks preventing talented candidates from being able to qualify.
The SRA’s response to the LETR: Training for Tomorrow
Our response to LETR was to initiate a fundamental programme of review and reform: Training for Tomorrow.
A review of professional standards allowed us to develop a new Competence Statement for solicitors, which for the first time set out the skills and knowledge required for practice as a solicitor. The next step was to consider how best to ensure that, on admission, solicitors had the required skills and knowledge. We proposed a new, rigorous, national assessment, the SQE, to assess all candidates on a fair and consistent basis. We also proposed permitting candidates to prepare for the SQE in the ways which suited them best, rather than continuing to require specific pathways to be followed. And in April 2017, the SRA board announced it would be moving ahead to introduce the SQE, aiming for implementation in Autumn 2020.
Why the SQE?
The SQE is designed to address the key flaws we (and LETR) identified with the current approach to solicitors’ education and training, which mean we cannot say with full confidence that qualifying solicitors are all meeting consistent, high standards; or that the brightest and best candidates can qualify. This is because the current system is:
Inconsistent – the different routes into the profession assess competence in different ways. Within the QLD/CPE/LPC route, assessments are set by over 110 individual universities. We cannot be sure that standards across the different routes and between different universities are comparable.
Not transparent – LPC and GDL pass rates range from 50 percent to 100 percent, and it is unclear why there is such a discrepancy.
Costly – qualifying can be expensive, and poor value for money for those who pass their exams but cannot find a training contract. Most trainees need to take an ‘LPC gamble’, paying up to £15,000 up-front for the LPC, with no guarantee of a training contract at the end of it. Some talented candidates are left stranded because the training contract bottleneck means there are insufficient training contracts for all those who have passed the LPC, while others are put off even attempting to qualify.
Internationally out of step – almost eight out of ten major jurisdictions we surveyed ask candidates to take an independent professional assessment.
The introduction of an independent assessment in England and Wales, the SQE, should address these problems. Most importantly, it will mean we can assure the profession, employers and the users of legal services that all qualifying solicitors, regardless of pathway or background, have met consistent, high standards.
It could also open up new opportunities. We will no longer require candidates to take particular qualifications. For example, we will not require candidates to have a QLD, GDL or LPC. The fact that we no longer require these qualifications does not mean that candidates will be able to qualify as solicitors without the necessary skills and knowledge. On the contrary, the demands of the assessment will drive the right learning and a centrally-set exam will be a more rigorous way of checking candidates’ competence.
But it does mean that candidates will be able to train in ways which suit their particular circumstances. Different routes to qualification, such as apprenticeships, will help attract the best candidates from all backgrounds into the profession. These different routes only work because there is a rigorous, independent check to make sure everyone meets the same high standard. The SQE will enhance confidence in new, innovative routes into the profession, and help challenge the current perception that some routes are more valid than others.
We therefore hope the SQE will benefit:
The public – who can trust that solicitors are meeting the same high standards; four out of five people we surveyed believe everyone should pass the same final examination.
Law firms – who will have a better guarantee of standards and could benefit from a potential widening of the talent pool. They will also have more flexibility to tailor their training in a way in which best works for their trainees and meets their business needs.
Education providers – who can clearly demonstrate, through a transparent comparable assessment, how effectively they are training their students. The best education providers will thrive.
Would-be solicitors – who can make choices, based on clear evidence, about how to train and which providers to choose. It will give the best candidates, from all backgrounds, a fair opportunity to qualify as a solicitor. Importantly, the SQE will not only validate different routes into the profession, it will also remove the training contract bottle-neck.
The new approach to qualification
The new approach to qualification will consist of four elements. By the time candidates seek admission as a solicitor, they must:
have passed the SQE to demonstrate they have the knowledge and skills set out in the competence statement.
have been awarded a degree or an equivalent qualification, or have gained equivalent experience.
have completed a period of qualifying legal work experience under the supervision of a solicitor or in an entity we regulate for at least two years (or full-time equivalent).
be of a satisfactory character and suitability, to be assessed at point of admission.
SQE: four requirements for admission
The design of the SQE
The SQE is a two-stage assessment. Stage 1 primarily assesses functioning legal knowledge; stage 2 assesses practical legal skills. Stage 1 will use computer-based assessment methods, and will test candidates’ ability to use legal knowledge to address client problems or in client transactions. It will integrate substantive and procedural law by assessing the substantive legal knowledge required in particular practice areas. For example, contract law will be assessed in Dispute Resolution, Property law and practice and Business law and practice. Skills will be assessed through simulations of the tasks which solicitors commonly undertake. The oral skills of advocacy and interviewing will be assessed through role-play assessments.
We are part way through a sourcing process to appoint a single assessment supplier to develop and administer the SQE on our behalf. We expect to have appointed the supplier by Easter 2018. Once appointed, the assessment supplier will review the proposed structure of the SQE and the draft Assessment Specification and conduct a programme of testing and piloting to finalise the design and content of the SQE. Our target introduction date for the SQE is September 2020. But we will not introduce the SQE until we are confident that the assessment is valid, reliable, accurate, manageable and affordable.
We have also planned a programme of engagement to help stakeholders to have a clearer understanding of the SQE and to prepare for its introduction. This includes the establishment of an SQE Reference group, an SQE Linked-In group, a conference for education and training providers in December 2017, and the development of a suite of resources to be published on our web-site.
There is no doubt the SQE is a major change to the way solicitors in England and Wales are regulated. Nor is there any doubt it will involve universities and law firms looking afresh at their academic curricula and professional training programmes. Some are apprehensive about the extent of the changes which lie ahead.
But the SQE will provide a gold standard of consumer protection. And, through that, it offers the opportunity for the profession to demonstrate its high standards, and for universities to demonstrate the quality of their education and training. It will ensure that the training for solicitors is both rigorous, and flexible enough to adapt to the rapidly changing world of legal services.
Contributed by: Julie Brannan, Director of Education and Training, Solicitors Regulation Authority
Notes: [i] LETR was jointly commissioned by the SRA, the Bar Standards Board and ILEX Professional Standards in 2011. It delivered its report in 2013. [ii] The regulatory objectives are:
(a) protecting and promoting the public interest;
(b) supporting the constitutional principle of the rule of law;
(c) improving access to justice;
(d) protecting and promoting the interests of consumers;
(e) promoting competition in the provision of services within subsection (2);
(f) encouraging an independent, strong, diverse and effective legal profession;
(g) increasing public understanding of the citizen’s legal rights and duties;
(h) promoting and maintaining adherence to the professional principles. (Legal Services Act 2007, s.1)
Proposals to centralise the assessment of would-be solicitors in England and Wales are highly likely to increase the number, and broaden the range, of training providers in the market, according to a report published by the Bridge Group.
The report, based on 18 individual and group, semi-structured interviews (25 participants in total) with a representative range of employers and training providers, also found that Solicitors Regulation Authority (SRA) proposals to introduce a centralised assessment process would likely trigger the rise of new models of training, including new forms of online provision.
Commissioned by the SRA, the independent report concludes that, by broadening the range of training options for would-be solicitors, the proposals should enable students to “chart more flexible pathways” to qualification, thus supporting diversity in the legal profession.
By stimulating competition in the legal education training market, the SRA’s proposals may also put downward pressure on prices, thus reducing the impact of cost as a barrier to qualification, write the report’s authors.
The Bridge Group is a charitable policy association researching and promoting diversity in education and the professions in the United Kingdom.
Hong Kong Law Society has proposed that from 2021 onwards, lawyers in Hong Kong will be required to sit and pass a ‘Common Entrance Examination’ in order to enter a trainee solicitor contract. The exam will be set and marked by the society itself, and is designed to standardise testing across Hong Kong’s three law schools.
Currently, prospective solicitors must graduate from an LLB or JD programme in Hong Kong or another common law jurisdictions, then complete the Postgraduate Certificate in Laws (at one of three universities) and pass the internal examination set by schools before becoming a trainee solicitor.
According to the future scheme, “a person may only enter into a trainee solicitor contract if that person has passed a Common Entrance Examination.” Under this system, students will have to complete the PCLL course but will not be required to take the examination set by PCLL providers, which will be replaced by the single unified test.