Regulating Lawyers in a Liberalized Legal Services Market: The Role of Education and Training

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TABLE OF CONTENTS  INTRODUCTION I. REGULATING LAWYERS--INTO THE STORM? II. THE NEW REGULATORY ENVIRONMENT IN ENGLAND AND WALES III. REGULATING LEGAL EDUCATION IN ENGLAND IV. RETHINKING REGULATING LEGAL EDUCATION AND TRAINING CONCLUSIONS 

INTRODUCTION

The recent reforms to the legal services market in England and Wales have attracted considerable international interest and commentary. (1) The implications of those changes for the U.S. legal services market have also been much debated, particularly as regards external ownership and investment in law firms. (2) Despite the recent rejection of alternative business structures by the American Bar Association (ABA), the reforms in Britain, Australia, Ireland, and (increasingly) continental Europe still represent a challenge to thinking in the United States. These reforms, it is suggested, point to a reshaping of the regulatory landscape on quite a fundamental scale. They seek to replace a system of regulation that, at best, has struggled to live up to its rhetoric of defending the public interest through the independence of lawyers, and, at worst, has provided a "client hostile foundation on which to regulate lawyers." (3) The alternative is a system that assumes that a liberalized market, driven by competition, assisted where necessary by regulation, is the best protector of public and consumer interests, in Britain and Australia, in particular, reforms have thus sought to insulate regulatory agencies from professional capture, largely by creating new co-regulatory spaces between independent regulatory and quasi-disciplinary agencies and law firms that are better placed to reflect consumer interests and, over time, could increasingly sideline the professional representative bodies.

Despite the amount of ink spilled on the issue of regulatory reform, the implications of such reform for legal education have been barely considered in the literature. This Article begins to fill that gap. It does so from the perspective of the ongoing English reforms. In England and Wales the implementation of the Legal Services Act 2007 (LSA 2007) has been followed by the announcement of a fundamental review of legal education, to be conducted jointly by the "big three" legal regulators--the Solicitors Regulation Authority (SRA), Bar Standards Board (BSB), and ILEX Professional Standards (IPS). It is being represented as the largest review conducted since 1971. (4) In January 2011, the regulators published a tender for a first research phase of the review. The tender was awarded in April 2011 to an academic consortium led by the present author. (5) The consortium's work is continuing, so it is not possible at this stage to report on the outcomes; however, this paper serves to introduce the context of the review, and to speculate on its implications for legal education and training policy and practice in England and Wales. The lessons for the United States arising from such reforms are obviously less clear-cut, given quite profound differences in the respective training systems in each country. Nevertheless, there are also some common features/problems shared by both systems: pressures from a significant over-supply of graduates, debate about variability of standards, graduates' lack of preparedness for practice, and, possibly, the over-regulation of law schools. These may permit us to offer some relevant and useful analogies.

I. REGULATING LAWYERS--INTO THE STORM?

In most jurisdictions the provision of legal services is, to a greater or lesser extent, regulated. The scope and reach of regulation varies quite widely, though it tends to focus on one or more of the following functions:

* Representation of a party to court proceedings;

* The protection of specific legal professional titles (such as attorney, notary, or solicitor);

* The provision of specific categories of legal advice for financial reward.

Traditionally, though some responsibility may be shared with the state, the judiciary, or some other--usually state-sponsored---entity, regulation has commonly been promulgated and enforced by the profession itself, as a form of self-regulation. …