Professor Duncan French, Head of Lincoln Law School, recently visited a number of universities in Guangzhou, China to discuss opportunities for collaboration as well as to discuss UK legal services and Brexit.
He was one of the keynote speakers at the South China Normal University’s international conference on the Reform and Development of China’s Lawyer System at which he spoke about recent consultations in England and Wales on legal training and legal regulation, as well as the potential effect on legal services of Brexit.
Whilst there, he signed a collaboration agreement with the Law School of South China Normal University.
He also visited South China University of Technology to renew its relationship with Lincoln Law School and to discuss future research and teaching collaborations.
Text of Professor French’s presentation on Lawyer Reform
Legal practice in England – recognising that the United Kingdom has multiple legal jurisdictions – is undergoing significant change and subject to substantial challenge.
In this short presentation, I want to outline three ongoing developments, relating to first, the training of lawyers, secondly, the regulation of lawyers and thirdly, the business environment of lawyers. Unsurprisingly, the third point relates to the UK’s decision to leave the European Union (so-called “Brexit”).
But first, legal training. As many of you will be aware, lawyers in England are divided between solicitors and barristers, the vast majority of lawyers being solicitors who while they have historically handled client work they have had fewer rights of audience before the courts, though this has changed dramatically over the last two decades.
For a long time, the training of solicitors has been separate from legal education. After a law degree (or an academic law conversion course following a non-law degree), students must undertake a one year practice-orientated diploma – the so-called Legal Practice Course, followed by two years of training with a law firm.
This model seemed to suit both the universities and many legal firms. However, the regulator – the Solicitors Regulation Authority (the “SRA”) – and some of the larger law firms have for sometime not been convinced as to the value of this approach, in terms of the financial cost of legal training to the student and doubts whether a decentralised approach to legal training can guarantee that the general public receives the same quality of legal advice.
The SRA is now proposing fundamental change, seeking to develop a standardised model involving common assessment of all prospective solicitors, but importantly without specifying the necessary routes to prepare for such an examination. The first of these examinations may be taken straight after a student’s law degree.
It could therefore mean that such preparation might be provided long-distance by legal training companies, it might form part of a law degree, or even theoretically that a student might self-study for the assessment.
The regulator believes this proposal will reduce costs while at the same time ensuring uniform entry standards of all future solicitors. As a legal educator, I am worried that students are being introduced into practice too early before they have learnt enough basic law (English law degrees are already usually only three years in length) and that no prescribed pathways to prepare for the assessment are being considered.
Moreover, I am not at all convinced that costs to the student will automatically fall or that legal advice will be guaranteed to improve.
What it seems to me to be about is an attempt by the regulator to try to achieve three things at once; first, an attempt to reduce the regulatory burden, secondly, to reduce costs but thirdly, for the regulator to retain oversight and control. A paradox, which might be referred to as centralised deregulation.
And this paradox is reflected in the second development; namely changes to the regulation of lawyers.
The regulator is currently consulting on a significant reduction in the number and prescription of the rules which legal firms must comply with (referred to as the solicitors’ handbook and its code of conduct). A separate consultation is seeking to simplify the management of client accounts.
Again, these proposals are explicitly premised upon reducing bureaucracy and cost, while at the same time seeking not to undermine the care that clients receive. A regulatory system premised on broad principles, rather than detailed rules, certainly has the potential to achieve this, but equally it raises a genuine debate as to how far such an approach moves invariably towards open standards, greater self-policing and ultimately shifts more of the risk onto clients.
And finally, the current business environment; and upmost in my mind here is “Brexit”. How will the UK’s departure from the EU – likely sometime in the next three years – affect lawyers?
It is undoubtedly the case that any regulatory change provides opportunities for lawyers. Advising clients and operating in a new legal environment will always provide work for lawyers.
And if, as is likely, the UK leaves – wholly or in part – the EU single market and / or its customs union, businesses will be faced with new legal challenges, including but not limited to the added transactional burdens of continuing to trade in goods and services with traditional partners. For instance, if the UK were to leave the single market, there would be many additional regulatory and technical barriers to trade.
But if leaving the EU might provide opportunities for lawyers – especially in the short-term – there are many risks. Many English lawyers are, by definition, EU lawyers as their work has significant EU potential.
Moreover, there is significant risk of a substantial economic downturn in the UK economy because of Brexit, and this would equally impact upon the work of lawyers. A slow economy is always bad news for law firms.
And this does not just raise domestic issues. There is particular concern for the City of London and its financial market; will it continue to benefit from its present position as the preeminent financial city in Europe or will that diminish if the UK is no longer in the EU? And will London continue to be a centre for international arbitration?
These are important questions, for which there are no answers yet. And all of this raises a further issue; the ongoing political uncertainty as to when the UK will leave, and what Brexit will finally look like. Even if the ultimate outcome is beneficial for the UK, the transitional period risks doing substantial harm to the business opportunities and reputation of the legal environment in the UK.
As with all such developments, whether they are viewed positively or negatively is a matter for debate and perspective. But never has it been so important for lawyers to think beyond their own individual legal specialisms and examine the broader regulatory structure.