Policy recontextualisation: the proposed introduction of a multiple-choice test for the entry-level assessment of the legal knowledge of prospective solicitors in England and Wales,and the potential effect on university-level legal education

Much of the substantive content of undergraduate law programmes in England and Wales is framed by the requirements of the legal regulators. There are now proposals for changes to the entry-level assessment of the legal knowledge of prospective solicitors, which include the use of a standardised multiple-choice test (MCT). It is anticipated that for most law students this would be taken alongside or immediately after their undergraduate studies. This paper uses discourse analysis to explore the positioning of the regulators in the consultation documents for this proposal, and undertakes a review of the literature on the use of MCTs in legal education. By using theoretical concepts derived from the work of Basil Bernstein, most notably the recontextualising rule, and classification, it explores the potential effects of this change in policy on university-level legal education.     

The Embedded Nature of Rural Legal Services: Sustaining Service Provision in Wales

There is a considerable amount of literature on embeddedness as part of sociological theory of economic action. Cultural and structural embeddedness often work together to shape the framework of economic relations, but, in an analysis of rural solicitors, we find unevenness between cultural and structural embeddedness. There are strong traits of the former, through a sense of place and belonging, but much less evidence of the latter with the structural relationships appearing relatively weak and underdeveloped. In a discussion supported by empirical data from a recent survey of rural legal practices in Wales, a number of causes are identified. The paper concludes that trends towards increasingly specialized rather than generalized legal service provision, set alongside the increasingly differentiated nature of rural space, suggest that the longer-term sustainability of rural legal practices may require both greater investment at the level of structural embeddedness alongside continuing reinvestment at the cultural level.     

Law clinics in England and Wales: a regulatory black hole

There has been very limited consideration to date of how the regulatory environment in England and Wales impacts on university law clinics and the solicitors who run them. This paper sets out the current regulatory framework pertaining to university law clinics and explains the restrictions and limitations it poses. It highlights the current failure on the part of the regulators to meet their statutory duty to promote access to justice in relation to university pro bono services and sets out a series of recommendations as to how clinicians and regulators can secure a more certain and enabling future for clinics.     

Women Solicitors as a Barometer for Problems within the Legal Profession – Time to Put Values before Profits?

This article will consider the theoretical explanations for why women are not remaining within and progressing through the ranks of the solicitors' profession in England and Wales. It sets out the findings from a Law Society commissioned project to examine the reasons why women have had a break from practice or chosen to leave the profession. Finally, it considers whether one of the purported strategies used to empower women solicitors – the business case for equality of opportunity in the solicitors' profession – is actively working against women and the profession (more broadly), and that only a return to a wider values-based approach to professional identity will meet the criticisms raised by many of the women who participated in this research.     

The Lord Chancellor's Advisory Committee

The Qualified Lawyers Transfer Scheme (QLTS) is a comprehensive assessment for lawyers from other jurisdictions and barristers from England and Wales to qualify as solicitors in England and Wales. Three new assessments have been developed which make up the QLTS, in part drawing on testing experience in medicine and in other jurisdictions: the multiple choice test (MCT); the objective structured clinical examination (OSCE) which involves assessment of oral skills (interviewing and advocacy) and which uses Standardised Clients; and the technical legal skills test (TLST) which involves assessment of written skills (legal research, writing and drafting). Some of the assessment methodologies used in the QLTS are discussed, including the use of standardised clients. An explanation is given of how reliability and accuracy of the assessments are calculated and how pass marks are set. The paper presents and reviews the very encouraging statistics from the first major delivery of the three assessments, including success by jurisdiction, ethnic group, gender and disability, and routine quality statistics on reliability and accuracy, as well as a statistical review of the use of standardised clients. QLTS reflects the regulatory aims of the SRA and is a radical departure for assessment of law in England and Wales. It is to be hoped its assessment methodologies will have a substantial influence on the future.     

Family law

In response to the Legal Education Training Review (LETR) the professional bodies have revisited the competencies required for legal practice. The SRA has prepared a draft competency statement for day one solicitors which focuses on the “key activities required for effective performance as a solicitor”. The impact of this more comprehensive competency statement on legal education is not yet clear, but one option is that it opens up a route to qualification where competency is achieved in the workplace or other non-academic settings and assessed outside the educational establishments. This article considers how to assess competency in legal education in both educational and work based settings. It charts the development of an outcomes orthodoxy in legal education in England and Wales and in other jurisdictions and draws on research in medical education to identify key principles in the design of an assessment methodology for professional education. The article takes a broad “view from the bridge” and reviews a range of assessment methods already in use in legal education and in other professions such as accountancy, medicine and conservator restorers. It argues that a move to a complex competency orientated training system will require a different approach to both the method of assessment and its programming.     

Salaried lawyers and billable hours: a new perspective from the sociology of work

The work of legal professionals is changing rapidly, but the changes have not yet been thoroughly investigated from the perspective of the sociology of work. This paper draws on a research project that examined the work of solicitors in private practice in Melbourne, Australia. It uses in-depth interviews, results of secondary surveys and other data sources in order to describe the dominant working-time patterns. The evidence points to a common pattern of rigid and demanding schedules, which can be traced back to the indirect pressures exerted by the widespread system of ‘billable hours’. The paper takes up the challenge to examine the operation of this system. We argue that the billable hours system, initially just a technique for billing clients, has been transformed into a tool for measuring and controlling the work of salaried solicitors, through setting of targets, close time recording, careful monitoring, and a supple set of sanctions.     

Using multiple choice questions to examine the content of the qualifying law degree accurately and reliably: the experience of the Qualified Lawyers Transfer Scheme

The Qualified Lawyers Transfer Scheme (QLTS) provides a route for lawyers from other jurisdictions and barristers from England and Wales to qualify as solicitors in England and Wales. One of the three tests in the QLTS, the Multiple Choice Test (MCT), uses multiple choice questions to examine the syllabus of the qualifying law degree together with some pervasive subjects from the Legal Practice Course. This paper examines the MCT in detail. Particular attention is paid to the format and structure of the questions. We describe the detailed editing which each question goes through before it is used, the statistical analysis and review which take place after an exam, and the rationale for these processes. An explanation is given of what reliability and accuracy mean and how they are measured statistically. There is also an explanation of the “Angoff method” by which pass marks are set. Finally, the paper reports on the first four sittings of the MCT and their statistical results including their reliability and accuracy. Use of the multiple choice test, though well established for examining applied knowledge in medicine and in law in other jurisdictions, is a radical departure for the assessment of law in England and Wales. The experience of QLTS has shown that a carefully constructed multiple choice test of a suitable length can assess the qualifying law degree content both reliably and accurately.     

Accountability and the Regulation of the Large Law Firm Lawyer

The regulation of solicitors in England and Wales has undergone great change in the wake of the Legal Services Act 2007. This article considers these regulatory developments through the lens of accountability, focussing on the regulation of transactional lawyers and the large commercial firms. It examines to what extent the Solicitors Regulation Authority's regulatory framework promotes accountability, examining entity regulation, outcomes‐focussed and principles‐based regulation, reporting and disclosure obligations, the Compliance Officer for Legal Practice and the sanctions system. It argues that although transactional lawyers cannot claim the benefit of the ethical principle of non‐accountability, as far as they and their firms are concerned, the regulatory framework is both unnecessary and insufficient. It duplicates the function of accountability to the client and fails to hold transactional lawyers to account for significant regulatory risks that they present, such as the practice of creative compliance.     

‘Feeling like a sponge’: the emotional labour produced by solicitors in their interactions with clients seeking asylum

Immigration solicitors working within the field of asylum law are required to deal directly with asylum applicants in their everyday work. They are, therefore, expected to perform emotional labour as part of their job. This small empirical study focuses on pre-substantive meetings of solicitors with clients, analysing the form and extent of the emotional labour produced, its origins, and the potential negative and positive consequences resulting from that performance.

Following a brief overview of emotional labour, the research methods will be outlined. The findings, which result from the analysis of interviews, show that this is a highly specialised job involving the performance of diverging emotional displays. Intense emotional displays of empathy are expected to gain the trust of clients. However, these emotions have to be managed to maintain the perceived professional integrity of the solicitor. This is achieved by concentrating on the legal aspects of the case to present a form of ‘detached concern’. This enables the task to be completed efficiently, as well as fulfilling the emotional demands of the job. However, balancing these different emotional displays can be hard work, and can lead to less experienced solicitors admitting reliance on surface acting to present expected emotional displays. This often results in emotional dissonance producing negative consequences such as decreased task efficiency, stress and depression.

The paper concludes with a discussion of the findings and proposals for future research. The importance of performing emotional labour is highlighted. Focus is also placed on the professional socialisation of immigration solicitors, and specifically the training undertaken. It is suggested that more explicit training in emotion management skills might ameliorate the potentially negative consequences of performing emotional labour. Following this will be a brief discussion of future research to be undertaken.     

The impact of cuts in legal aid funding of private family law cases

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made deep cuts to legal aid in the UK from April 2013, withdrawing state aid from almost all private family law cases. The paper is based on the findings of a micro-study of solicitors and Citizens Advice Bureaux (CABx) in Kent and London to investigate the impact of LASPO cuts on their work. The findings suggest that: legal aid firms have closed or merged; legal aid work is often partially carried out in solicitors’ own time; ‘unbundled’ services for litigants in person (LIPs) are increasingly common; and family cases are being complicated and extended by the new ubiquity of the LIP. Respondents suggest that litigants may increasingly be ‘giving up’ on pursuing their cases, with clear implications for financial justice and contact with children. Further research is needed into the financial and affective impact of the cuts and the distribution of losses and difficulties between genders. The study, however, suggests the likelihood of post-separation poverty, debt and capital losses increasing in the post-LASPO environment, and that firms and CABx are having to find various methods of dealing with clients abandoned by the state.     

One lawyer acting for two clients: implications arising from an experimental practice model ‘Family Matters’

The legal services market has faced unprecedented change following implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Alternative business models and wider use of digital technologies have developed alongside debates about the future of legal practice in family law. Arguments have been made for new hybrid models that combine legal advice with mediation and for solicitors to be enabled to work with two clients. This paper contributes to that debate by highlighting implications for such practice innovations based on research evidence of solicitors’ experiences of delivering an experimental model of practice: ‘Family Matters Guides’. This model, piloted by Resolution, involved the Guides providing intensive support and legal information (not legal advice) to both separating parents to help them reach agreements. This paper is timely as the professions await the new regulations from the Solicitors Regulation Authority (autumn 2018) making flexible practice models a reality.     

Career Paths and Choices in a Highly Differentiated Profession: The Position of Newly Qualified Solicitors

Differences in the working lives of solicitors have become increasingly marked in recent years. Growing numbers of lawyers are employed in the public and corporate sectors and, with the increasing size and wealth of City of London commercial firms, there are significant differences between these firms and those 'high-street' firms that serve local communities. These differences impact on lawyers throughout training and beyond, both in terms of rites of passage into the profession and in conditions of employment. This research, the final stage in a longitudinal survey spanning the 1990s, combines quantitative and qualitative methods to explore the reactions of newly qualified solicitors to their work. Building on the project's previous surveys, which charted the nature of disadvantage suffered by many prospective entrants to the legal profession, the research finds a large measure of satisfaction regarding careers. It also identifies causes for concern, including increasing specialisation in legal education and the potential separation of the intrinsic and extrinsic rewards of professional practice.     

英国律师制度沿革与法学高等教育简介

经过几个世纪的变迁,英国现在有出庭律师、事务律师和王室顾问等几个不同的律师职业阶层。这些律师工作的侧重点不一样,对专业知识的要求也不同,他们共同构成了英国律师界的一个有机整体。针对目前存在的是否需要将出庭律师与事务律师两种职业合并的争议,从历史的角度考证英国律师制度的发展沿革,介绍与之相关的英国法学教育和律师培训的一些特点,可以得出二者之合并不可能在一朝一夕完成的结论。     

In Person

Clare, a partner in London solicitors Collyer Bristow, specializesin IP litigation. Much of her work involves trade mark/passingoff litigation, although copyright and design orientated mattersalso constitute important areas of practice for her,     

Willingness to innovate in family law solicitor practice in England and Wales: a qualitative study

This paper analyses interview data from 24 long-qualified family law solicitors working in private practice traditional settings in the Midlands and North of England. Experiences and perceptions of change are explored in order to contribute to contemporary understandings of practitioner willingness to innovate in the new legal services landscape, particularly as family law solicitors have been called upon to adopt new practices such as unbundling to survive. Three ‘types’ of emergent identities are identified amongst the sample respondents. These are linked to attachment to traditional role orientations, values and boundaries, as well as practice settings and perception of opportunities and threats.     

Assessing effective participation in vulnerable juvenile defendants

Effective participation in trial is outlined under article 6 of the European Convention on Human Rights and refers to the ability to understand and engage in trial. Juvenile defendants are often referred to psychologists or psychiatrists by their solicitors to establish ‘effective participation’ capacity. In the USA, key components to participate effectively are defined and standardised assessments available. In the UK, no formal measures exist. A consecutive series of 20 adolescents aged 12–20 years, referred by their solicitors to our service, were assessed using a standardised battery and a semi-structured interview designed to assess effective participation. Fifty-five per cent had at least one neurodevelopmental disorder. Low IQ was common and 50% had age-equivalent language scores below 10 years. Rates of depression, anxiety and PTSD were high. Knowledge about trial was poor. These findings have implications for Criminal Justice System professionals and to ensure fair trials for young defendants.     

The Way in Which Fee Reductions Influence Legal Aid Criminal Defence Lawyer Work: Insights from a Qualitative Study

This article examines how fee reductions influence criminal defence lawyers’ work. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed in order to understand the way in which cuts to fees paid by government for criminal legal aid work can operate to influence criminal defence lawyers’ working practices. I use game theory and Bourdieu's concepts of habitus and field to build a theoretical construct illustrating the invidious position current financial conditions place criminal legal aid lawyers in. I argue that these conditions reward and encourage perceived poor practices and values to thrive at the expense of other concerns – such as the conviction of the guilty, acquittal of the innocent, fair treatment of both victims and defendants, and value for the taxpayer. Ultimately, I argue that criminal legal aid lawyers are set up to fail by the current financial conditions within which they must work.     

Male Sex Work: Exploring Regulation in England and Wales

Whilst sex-work policy in England and Wales claims gender-neutrality, local and national prostitution strategies primarily focus on female street-based sex workers. Men who sell sex are generally absent or inadequately considered in such policies, and measures to regulate commercial sex markets are rarely considered in terms of their impact on male working practice. Drawing on the Coordinated Prostitution Strategy for England and Wales, this paper has two aims: first, to offer a gender-based critique of the current policy framework for England and Wales by arguing that sex-work policy is infused by a gendered understanding of sex work in which male identities are neglected or assumed deviant; and second to explore the notion that understanding sex work as it is performed locally is valuable when generating local and national policy. Informed by gendered readings of policy, social understandings of masculinity, and the (in)visibility of male sexual commerce this paper explores male sex work in the context of Manchester, England.     

Administrative Justice in Wales

This article examines some of the synergies between Phil Thomas’ work and the authors’ research into administrative justice in Wales. Like him, they have examined the impact of new rights-based legislation on access to justice, and also share with him an interest in connections between politics, social policy, and access to justice. The article argues that Wales is not yet taken seriously as ‘a site in which [administrative] justice is done’, and that there remains an ‘implementation gap’ when it comes to putting innovative social policy into practice. The limited development of an administrative justice culture can hamper the achievement of social and economic justice in Wales; such a culture could be fostered with leadership from the Welsh Government and the Senedd, alongside improved training for administrators, and the potential addition of ‘a just Wales’ to the well-being goals contained in the Well-being of Future Generations (Wales) Act 2015.