4.20 The development of OBET in LSET is generally at an earlier stage than either medicine or accountancy. Stuckey et al (2007:45-47) thus describe ‘a transition from content-focused to outcomes-focused instruction ... underway in legal education’. This process has been most marked in the development of vocational programmes in Australasia and the UK since the 1980s,11 though significant attempts to define outcomes for academic legal education also exist, and there are recent initiatives in Canada, Australia, Scotland and the USA. These initiatives are now discussed in more detail.
Canada
4.21 Historically, each provincial law society has its own standards for bar admission courses, and, although subject-based requirements for law degrees in Ontario were agreed in 1957 and reviewed in 1969, no national competence framework existed until recently.
4.22 Between 2007 and 2009, the Federation of Law Societies of Canada (FLSC) undertook a review of the requirements for recognition of a Canadian common law degree. The review was said to be driven by four needs (Federation of Law Societies of Canada, 2009:3):
• to ensure that admission processes for domestic and internationally trained applicants are transparent, objective, impartial and fair;
• to articulate what law societies regard as the essential features of a lawyer’s academic preparation in the context of increasing numbers of internationally trained applicants for entry to bar admission programmes;
• to set standards for recognition of law degrees in the context of proposals for the first new Canadian law schools in over 25 years;
• to respond to questions about the variation in admission requirements between law societies arising in the context of federal and provincial governments’ commitments to national labour mobility and harmonised standards.
11 See Annex I for a comparison of the approaches taken by the existing frontline regulators in England and Wales.
The report also proposes a set of input measures in respect of programme design and resources, including requirements for pre-law admission, length of courses, staffing, facilities, information technology, and law library, and sets out approval, compliance and reporting processes. The proposed scheme comes fully into operation in 2015, with the period from 2012 regarded as transitional.
4.24 The Canadian Common Law Degree statement highlights the need to develop
competencies in ethics and professionalism, skills, and substantive legal knowledge. The skills and knowledge areas are defined12 as:
• Skills competencies;
problem-solving;
legal research;
oral and written legal communication;
• Substantive legal knowledge;
foundations of law;
public law of Canada;
private law principles.
4.25 The specification for the skills components is essentially task-based, but the specification of knowledge areas is relatively broad - more so than the Australian ‘Priestley 11’ discussed below. There are no indications as to credit loading or level for any of the required elements, though the knowledge component as a whole must comprise ‘a sufficiently comprehensive program of study to obtain an understanding of the complexity of the law and the
interrelationship between different areas of legal knowledge’.
4.26 In addition to the Common Law Degree Task Force, in October 2009, the Council of the Federation approved a plan for a further project to develop national standards for admission to the legal profession in Canada (see Federation of the Law Societies of Canada 2012a, 2012b). These standards incorporate the work of the Common Law Degree Task Force (albeit in a rather different format), and also indicate the minimum outcomes expected of the bar admission programmes, thus representing what might be regarded as a set of ‘day one outcomes’ for Canadian lawyers.
4.27 The resulting standards (see Annex II) combine generic professional service skills with a list of ‘general tasks’ that applicants must be able to perform. These include a client interview, an opinion letter, the production of specific documents, and simple advocacy. They also extend the knowledge-base into procedural and adjectival law (not required as part of the LLB or JD), and into additional substantive law areas: family law, and wills and estates.13 4.28 There has been relatively little published debate about these initiatives. Some doubts have
been expressed from within the law schools about both the processes adopted by the Task Force, and the necessity for regulation, and these are discussed later in this section.
12 In the full standard each is further defined by specific activities or components of knowledge.
13 From the commentary in the Phase One Report it appears that the requirement for ‘corporate and commercial law’ in the National Standards is regarded as equivalent to the ‘legal and fiduciary concepts in commercial relationships’ in the law degree competencies.
Australia
4.29 Moves to develop competencies began with work in professional training in individual states in the 1980s, influenced by earlier innovations in British Columbia (Jones, 1994). These competencies were developed into a national framework for professional legal training (PLT) in 2000 by the Australasian Professional Legal Education Council (see APLEC, 2002).
This framework is still in place and expresses competencies for a range of skills areas (lawyers’ skills; problem-solving; work management and business skills, and trust and office accounting), key practice areas (defined by transactional steps/tasks) and ‘ethics and professional responsibility’. The framework relies predominantly on outcomes, though there are a small number of input requirements (eg, prescribing that PLT courses should be at graduate level, and setting minimum hours). APLEC commenced a review of the framework in 2012. A discussion paper published in June 2012 invited views on a number of propositions, but it does not indicate any intention to move away from a predominantly outcomes-based approach (APLEC, 2012).
4.30 Requirements for the academic stage were consolidated across all Australian jurisdictions in 1991 so that satisfaction of the academic stage of training requires the equivalent of at least three years’ full-time study of law, including the so-called ‘Priestley 11’ prescribed areas of knowledge.14
4.31 In 2009 the Council of Australian Law Deans (CALD) supplemented the Priestly 11 with a set of ‘soft law’ standards for Australian law schools. Modelled on the American Bar Association’s (ABA) standards, these are a combination of threshold and aspirational input and outcome statements (Australian Learning and Teaching Council, 2010:12).
4.32 In December 2010, a set of six threshold learning outcomes (TLOs) were endorsed by CALD and are now being mapped by law schools against their own undergraduate curricula.15 The TLOs are (ALTC, 2010:10):
TLO 1: Knowledge
Graduates of the Bachelor of Laws will demonstrate an understanding of a coherent body of knowledge that includes:
(a) the fundamental areas of legal knowledge, the Australian legal system, and underlying principles and concepts, including international and comparative contexts,
(b) the broader contexts within which legal issues arise, and
(c) the principles and values of justice and of ethical practice in lawyers’ roles.
TLO 2: Ethics and professional responsibility Graduates of the Bachelor of Laws will demonstrate:
(a) an understanding of approaches to ethical decision-making,
(b) an ability to recognise and reflect upon, and a developing ability to respond to, ethical issues likely to arise in professional contexts,
(c) an ability to recognise and reflect upon the professional responsibilities of lawyers in promoting justice and in service to the community, and
(d) a developing ability to exercise professional judgement
14 These are: criminal law and procedure; torts; contracts; property; equity (including trusts); company law; administrative law; federal and state constitutional law;
civil procedure; evidence; ethics and professional responsibility.
15 A further set of six TLOs have been drafted and approved by CALD (March 2012) for the new Australian graduate law degree, the Juris Doctor (JD). These are closely based on the undergraduate outcomes, but with recognition that the JD is a postgraduate award and therefore that students should be performing to Masters’ level.
TLO 3: Thinking skills
Graduates of the Bachelor of Laws will be able to:
(a) identify and articulate legal issues,
(b) apply legal reasoning and research to generate appropriate responses to legal issues, (c) engage in critical analysis and make a reasoned choice amongst alternatives, and (d) think creatively in approaching legal issues and generating appropriate responses.
TLO 4: Research skills
Graduates of the Bachelor of Laws will demonstrate the intellectual and practical skills needed to identify, research, evaluate and synthesise relevant factual, legal and policy issues.
TLO 5: Communication and collaboration
Graduates of the Bachelor of Laws will be able to:
a) communicate in ways that are effective, appropriate and persuasive for legal and non- legal audiences, and
(b) collaborate effectively.
TLO 6: Self-management
Graduates of the Bachelor of Laws will be able to:
(a) learn and work independently, and
(b) reflect on and assess their own capabilities and performance, and make use of feedback as appropriate, to support personal and professional development.
4.33 The TLOs were drafted to encompass the Priestley 11 (by reference) into TLO 1, and in the light of the CALD Standards. They draw on a range of national and international influences, including the generic level indicators for undergraduate work in the Australian Qualifications Framework (akin to the Higher Education Qualifications Framework in England and Wales), ABA Standards, the Scottish Accreditation Framework, the Tuning Framework, and the Joint Statement and QAA Law Benchmark in England and Wales. The influence of the QAA Benchmark is particularly apparent in the framing of TLOs 1, 3, 4 and, to a more limited extent, 5 and 6. The TLOs are also supported by quite extensive notes which provide
‘non-prescriptive guidance’ on interpretation (ALTC, 2010:11). It is also suggested that, through CALD, the guidance should evolve and develop, thus strengthening ownership and legitimacy of the outcomes within the academic community.
Scotland
4.34 The primary training pathway in Scotland for over thirty years has been a law degree followed by a Diploma in Legal Practice, which constitutes the first stage of professional training for both solicitors and advocates. The law degree in this model was required to deliver a substantial core of substantive law courses, while the Diploma similarly originated as a curriculum-led course, structured around eight compulsory subjects and an option.16 In the late 1990s the Diploma was reviewed in the light of growing dissatisfaction with the course among employers, trainees and students. This led to some significant redesign work, which saw professional legal skills and ethics integrated far more with the delivery of the knowledge areas (see, eg, Maharg, 2004).
16 Civil court practice; criminal court practice; financial services and accountancy; private client; professional ethics; conveyancing; practice management, and one of company and commercial practice, or public administration.
4.35 In 2006, the Law Society of Scotland commenced a further complete review of its provision for undergraduate legal education and professional training. Following extensive consultation and analysis of responses, proposals for a revised scheme of ‘Professional Education and Training’ (PEAT) were approved in 2009 and came into effect in 2011. These reforms have generally sought to increase both flexibility within and continuity between the stages of education and training, with PEAT 1 (the revised Diploma) performing a particularly critical
‘bridge’ function between the academic study of law and practice (Maharg, 2013: 125).
4.36 The underlying basis for the changes lay in the specification of a new set of learning outcomes for each of the stages of education and training. For the Foundation (‘exempting’
degree17) stage, the required outcomes are divided into the triumvirate of knowledge, skills, and values and attitudes (see Law Society of Scotland, 2010). The knowledge areas have been somewhat reduced, though they remain wider in scope than the Anglo-Welsh equivalent. In broad terms they are defined as:
• legal systems and institutions affecting Scotland;
• persons;
• property;
• obligations;
• commerce;
• crime.
4.37 Each of these areas is then further defined in the specific outcomes statement. These areas together with the general transferable and personal skills and the values components of the course (which are described as pervasive) should comprise 180 credits of the minimum 240 credits of legal subjects required.18 The outcomes must be achieved at Ordinary degree level (level 7 or 8 on the Scottish Credit and Qualifications Framework (SCQF), equivalent to levels 4 or 5 in the Anglo-Welsh system), but there is no requirement as to the level at which any specific outcomes are achieved, and no requirement that any of the outcomes are achieved at final-year (Honours) level.
4.38 Following on from the Foundation course, the new process comprises PEAT 1 (the Diploma in Professional Legal Practice) and PEAT 2 which prescribes specific outcomes for the Scottish training contract. The new Diploma programme is organised around a set of
‘mandatory’ and ‘core’ outcomes which should normally comprise 60, and no more than 80, credits at level 10 (ie, Master’s level) out of a total of 120 credits for the programme (see Law Society of Scotland, 2009). The remaining credits are made up of electives designed and specified by each provider. The mandatory outcomes are specified for six areas of work:
private client, conveyancing, litigation, business, financial and practice awareness, and tax (with tax to be taught pervasively).19 The core outcomes are defined as professionalism, professional communication, and professional ethics and standards.
4.39 The statement of professionalism is a distinctive feature of PEAT 1 and is designed to be at the core of the course and assessed pervasively. The professionalism outcomes require students to demonstrate understanding of the importance of:
• the interests of justice and democracy in society;
• effective and competent legal services on behalf of a client;
• continuing professional education and personal development;
17 In Scotland the term ‘exempting’ degree is used to describe a degree that satisfies the Law Society of Scotland’s requirements for the academic stage of training.
It is therefore not the same as an exempting degree in England and Wales which is a programme combining the QLD and the vocational stage for barristers or solicitors.
18 That is, the Foundation outcomes comprise less than half of the typical four-year Scottish degree (480 credits).
19 Conveyancing, private client, and litigation are reserved areas of work as defined in the Solicitors (Scotland) Act 1980.
• diversity and public service;
• trust, respect and personal integrity.
4.40 Providers are given guidance on appropriate modes of assessment for the different areas, with the guidance placing a strong emphasis on the need to develop realistic assessment tasks. However, there is little by way of formal specification.
4.41 A further major change resulting from the reforms is the introduction of outcomes for PEAT 2. None of these is substantively law-based. Unlike England and Wales, there are no prescribed ‘seats’ for trainee solicitors, so outcomes are defined in relation to professionalism; professional ethics and standards; professional communication, and business, commercial, financial and practice awareness (Law Society of Scotland, n.d.), which can be demonstrated in the context of any appropriate area of work. These are cross-cutting outcomes which thus link PEAT 1 and PEAT 2 to construct the Diploma and training contract more deliberately as a three-year process.
4.42 An individual’s progress towards achieving the PEAT 2 outcomes is assured by a requirement of quarterly performance reviews over the two years, which assess development needs against the outcomes, and an online training record, including a reflective log, which must be completed by the trainee.20
USA
4.43 It is notable that the US system has been slow to adopt any kind of co-ordinated outcomes-based approach, though a number of individual institutions and teachers have developed or experimented with OBET, including some significant early attempts at identifying lawyer competencies (notably Cort and Sammons, 1980). This position has changed following the publication of the Carnegie Foundation (Sullivan et al, 2007) and Best Practices (Stuckey et al, 2007) reports on legal education, both of which recommended outcome measures.
4.44 In direct response the ABA created a ‘Special Committee on Outcome Measures’ (the Outcome Sub-committee) in 2008 which sought views and undertook a review of the literature on outcomes in legal education and other professional fields. It recommended reframing the ABA accreditation standards ‘to reduce their reliance on input measures and instead adopt a greater and more overt reliance on outcome measures’ (ABA,
2008:1). Responding to the Outcome Sub-committee’s report, the ABA Standards Review Committee has proposed new approval criteria that would require law schools to articulate the outcomes they intend their students to achieve, to assess student learning through a range of methods, to give students meaningful feedback, and demonstrate that they (the law schools) are achieving their student learning outcome goals (ABA, 2012).
4.45 Revised Standard 302 is at the heart of the change from a curriculum-led to outcomes-led approach. Its most recent draft version requires law schools to include learning outcomes
‘as entry level practitioners’ in respect of:
(1) knowledge and understanding of substantive law, legal theory and procedure;
(2) the professional skills of:
(i) legal analysis and reasoning, critical thinking, legal research, problem solving, written and oral communication in a legal context; and
(ii) the exercise of professional judgment consistent with the values of the legal profession and professional duties to society, including recognizing and resolving ethical and other professional dilemmas.
20 Trainees are also required to complete a minimum of 60 hours of ‘trainee CPD’ (TCPD).
(3) a depth in and breadth of other professional skills sufficient for effective, responsible and ethical participation in the legal profession;
(4) knowledge, understanding and appreciation of the following values:
(i) ethical responsibilities as representatives of clients, officers of the courts, and public citizens responsible for the quality and availability of justice;
(ii) the legal profession’s values of justice, fairness, candor, honesty, integrity, professionalism, respect for diversity and respect for the rule of law; and
(iii) responsibility to ensure that adequate legal services are provided to those who cannot afford to pay for them.
The process of reformulating the Standards is continuing, and the draft Standards are therefore not considered in greater detail in this section.