Bankers: get a moral compass, not a lawyer!

The Barclay’s and Standard Chartered scandals are now starting to shine a rather unwelcome spotlight on the role of banks’ in-house counsel, highlighted in both a recent blog post by Richard Moorhead, and a piece in today’s Financial Times by USD law professor Frank Partnoy.

 

In theory we don’t expect bank lawyers to behave like bankers. General counsel are supposed to be the institutional conscience, guardians of reputation and (legal) risk managers for corporations. Like all lawyers, they are ethically bound by a principle of independence (check it out – In England and Wales its right up there with integrity in the SRA’s 10 mandatory Principles – there is no opt-out for in-house). Though this is often assumed to be primarily a principle that operates to the benefit of clients (part of what Moorhead aptly calls the ‘client first’ ethos), it is wider than that, and in cases of conflict, the public interest ‘tie-breaker’ would indicate that it should trump the duty to the client (see notes 2.2 and 2.7 to the SRA Principles). This is not to say that being an in-house counsel isn’t a tough gig sometimes. If big clients can put pressure on external law firms to provide the advice they want rather than the advice they need, the pressures in-house, where it is even harder to maintain independence, can be enormous. And dividing lines can be notoriously fine. And no in-house department wants the reputation of being the ‘business prevention unit’… and all sorts of other excuses. But what is worrying Moorhead and Partnoy and me, is the sense that this may not be about the vulnerability of poor little general counsel, it is that they may be far more actively complicit in the whole mess than we would like. Research by Robert Nelson and Laura Beth Nielsen at the start of the last decade pointed to this: they found that inside counsel in large corporations positively worked to demonstrate their commitment to corporate objectives, and tended both to defer to management views of legal risk, and to limit their gatekeeping functions accordingly (‘Cops, Counsel and Entrepreneurs: Constructing the Role of Inside Counsel in Large Corporations’ Law & Society Review, vol 34, 457-94).  In other words, asking your lawyer may not be the substitute for a personal moral compass after all. Let’s hope that one lesson to emerge for both bankers and lawyers from the bank scandals is, as Frank Partnoy observes, that banks need inside counsel with moral backbone.

 

And there’s more to it than that, for those of us interested in legal ethics the banking scandals usefully serve to highlight the extent to which in-house lawyering has tended to be the poor relation in thinking about ethics and regulation. Profesional codes of conduct are written around private practice; in-house obligations are largely cherry-picked from (or shoe-horned into) those more general principles. In-house work is, one suspects, for most of the time so far below the radar of professional regulatory and disciplinary authorities as to be virtually invisible, and in-house lawyers themselves complain that the general professional legal training provided by LPC and BPTC largely ignore in-house practice. The profession itself could do more to serve the in-house sector better.

New surveys from Targetjobs

GTI Media, the publishers of the Targetjobs websites, have completed their 2012 trainee and law student surveys. The results can be found here.

Results for the trainee survey are derived from an online survey completed by 206 trainee solicitors working at a ‘variety’ of law firms. Headline findings include:

• Just over 70% agreed that the LLB/GDL prepared them ‘quite’ or ‘very’ well for work
• Over 90% thought that the LPC prepared them ‘quite’ or ‘very’ well for legal practice
• About 75% agreed that ‘university’ prepared them ‘reasonably’ or ‘very’ well for their training contract

These headlines obviously suggest a fair degree of satisfaction with the status quo. Neil Rose in Legal Futures has been quick to suggest that “the results arguably run contrary to the sentiments coming out of the ongoing Legal Education and Training Review (LETR) that the LPC is not preparing students adequately.” Of course its Neil’s job to look for an argument, but I have two responses to that statement; first, so far, we have only asked the question, we are still looking at (for) the evidence, either way. Secondly, I’m not sure the evidence to LETR thus far is pointing to radically different conclusions regarding student perceptions (though those of course are just part of the picture, and we are trying to be more nuanced about it, precisely because these sorts of headline stats are of relatively limited value).

As with all stats, the story they tell depends, to an extent, on how we choose to interpret them: glass half full or glass half empty? Should we be concerned that over a quarter of graduates felt that their LLB/GDL did not prepare them ‘at all well’ for the world of work?  Similarly, that 68% said the LPC prepared them only ‘quite well’ for the TC might be seen as less than a ringing endorsement. Is ‘quite well’ good enough, or is it realistically as much as we can ask of a classroom-based course?

More than that, however, responses need also to be read in the context of what else was asked, and what else we know about the sample. From the published GTI date the contextual date appears quite limited:

• All respondents are employed as trainees, so the system has worked for them. We don’t know if that predisposes them to the status quo. Would unsuccessful LPC graduands have given a significantly different set of responses?
• We don’t know whether factors like sponsorship, the provider attended, or attendance at a ‘bespoke’ LPC make a difference to perceived satisfaction. Some more sophisticated factor analysis might be really helpful here.
• What if we asked them to envisage a better way of training, how would the LPC compare then?
• What if we also asked them whether the LLB or GDL should be a better preparation for work or not? That might have given a different slant on satisfaction with the degree/GDL

This is not intended to rubbish the GTI findings, but it does highlight (as if we need to!) the difficulty we face in interpreting such broad data.  This is one of the reasons we are drawing extensively on qualitative data for LETR, and, interestingly, the individual comments reported by GTI do echo quite a number of the things we are hearing in our fieldwork.

The student survey (705 respondents) also offers some strong measures of student satisfaction: 85% of those studying law were ‘happy’ or ‘very happy’ with the quality of their degree, and only 4% felt that their degree did not prepare them for work.

Not surprisingly, the GTI data echoed other recent studies that have emphasised the criticality of work experience to access to the profession.  93% of students stated that they found it ‘difficult’ or ‘very difficult’ to get a vacation placement offer. Students also felt strongly that the profession has an obligation to provide more work experience opprtunities than it currently does.

The survey also reports that 43% of students were thinking about a career outside of law. The report speculates that this may reflect the higher competition for training contracts and pupillages. But again the evidence may not really support this. It is not clear whether the GTI data disaggregate those students considering a non-legal career as a back-up option from those who have no intention of entering the profession. Melissa Hardee’s recent survey, along with other studies going back to the 1980s, suggests that, by the final year of the degree, consistently over a third of law students have no intention to enter practice, indicating perhaps that increased competition may be having less of an impact than the 43% figure at first sight suggests. But food for thought nonetheless.

Red-LETR week?

Pleased to have made it to saturday! Even by our current standards its been a big week for the LETR research team. I don’t normally bore folk with the details, but I thought today I’d give you an insight into the scale and scope of what we are doing.

Monday saw the launch of our online questionnaire. Its a complex instrument, with lots of different pathways (‘pipes’ in the jargon) for different groups of respondents, and has been under development for a while. As usual everyone on the team has had a hand in developing and testing this, but its particularly thanks to Simon Thomson and Avrom Sherr that its out there. If you haven’t responded yet, the link is on the LETR website; we really do want to hear from as broad a range of people as possible – including consumers of legal services, as well as the usual suspects.

We have also started our research work this week with the approved regulators – although the BSB, SRA, and IPS are funding and (in a sense) overseeing what we do, they, and the other approved regulators, are also part of what we are researching – they have data on the profession, they have views on what’s working and not working and their own perspectives on the role of education and training as a regulatory tool. This is all grist to our mill.

We have also had a number of important events and meetings. On Monday I spoke at a briefing event at Herbert Smiths on LETR and legal apprenticeships for the Legal Education and Training Group (with excellent presentations from Charles Welsh from Skills for Justice and Jenny Pelling of ITS). Yesterday Jane Ching, Simon T and I met with senior representatives from the Inns of Court at a meeting we had arranged at the Inner Temple. There were moments when being cross-examined by three senior members of the judiciary, the Treasurers and/or Under Treasurers of most of the Inns and a bevy of senior QCs did feel like being hit by a very skillfully and courteously directed bus! Nevertheless it was, I think, an extremely valuable meeting for all of us, and a re-match is being planned. Our particular thanks to Fiona Fulton and Anthony Dursi for organising this, and setting up a focus group of junior barristers to follow on from the meeting. And then, of course, on Thursday, there was the Nottingham Law School legal education debate, which marked the launch of Nottingham’s new Centre for Legal Education – led by Becky Huxley-Binns and our own Jane Ching.  The morning saw a lively debate, chaired by Baroness Ruth Deech, and attended by a good mix of practitioners, students and academics. The debate itseld has been blogged by Paul Maharg, but it was also well attended by the twitterati, who provided a really lively real-time counterpoint to the live event, generating over 500 tweets over the course of the day (BILETA have produced some great stats on this – here). As Michael Thomson ‏ (@ekbusinesslaw) observed, “a great example of knowledge sharing & learning from other law tutors”. In the afternoon Jane, Paul and I delivered another briefing on LETR, and got participants to engage with us on a range of questions raised by the Review.

A particular mention in LETR dispatches has to go to Jane Ching this week – Jane was out every day on LETR business – CILEx on Monday, research focus group in London on Tuesday, IPReg (with Avrom) on Wednesday, NLS debate on Thursday and back in London at Inner Temple yesterday – a definite star turn, particularly when you recognise that we all still have a large part of our usual day jobs to do as well!

As for next week – rather less travelling and more reflection, consolidation of this week’s work, and preparation for next set of visits to the regulators, more focus groups and, particularly for Natalie Byrom and me, the development of our work with the unregulated sector….

 

Holding a mirror up to nature

Rather belatedly I have caught up with a discussion over at Richard Moorhead’s Lawyer watch blog, in which Richard looks at the College of Law’s new two year LLB and questions the extent to which it is likely to be as different from other LLBs as it claims to be. A critical point in Richard’s argument is that

The real, intellectual difference between the College’s approach and the traditional law school’s approach is most likely between the College’s emphasis on teaching students in the practical utility of law. In the College this is likely to lead to solid practical teaching of solid practical legal skills in determinedly practical contexts. A bit of this is a good thing.  In fact, problem based learning is well established in some undergraduate curricula already.  But to concentrate on this to the exlcusion of everything else?  That gives me concerns.  Students are likely to be well trained in a mechanistic way but will they be inspired?  Will they understand the broader picture? Will they develop critical thinking skills?  The key thing that an excellent University education provides beyond the basics is those moments of inspiration, where the student’s world view may be genuinely transformed.

This post generated a number of interesting responses, including a thoughtful post from the College’s Scott Slorach. Amongst a range of points, Scott takes on Richard’s concern that the College will not address the ‘broader picture’, as follows:  

The broader picture is the understanding of the practical, contemporary contexts in which legal principles are applied in order to facilitate transactions, assert rights, allocate risk, seek remedies, govern businesses, define relationships, and so on. Providing this broader picture of the interests of individuals and businesses, and how practising lawyers use the law to maintain, develop and protect these interests is paramount to a deep understanding. I agree with you entirely that an excellent education should be one which provides the “spark [which] is necessary for life-long learning, commitment to professional ideals and to produce the truly exceptional individuals who can cope with transformative change. It is also necessary for the quality of university as a life experience.” I believe that providing students with the aforementioned broader picture will create an environment where the sparks will be in the form of “Now I see why…”, “So that’s how you can…”, etc. That is, understanding not only what the law is, and why the law is as it is, but, most importantly, how it can be used practically for the benefit of individuals and businesses. It is this latter relevance which can provide understanding and continued motivation to learn from the start.

Now we could, of course, just mutter that there is room for many approaches and respect the virtues of a thousand flowers blooming and leave it at that, but I can’t help but wonder if there isn’t something fundamentally a bit troubling about Scott’s response.

I agree absolutely that degree level education needs to address the various dimensions of “what”, “how” and “why”, but I am concerned that what Scott offers is (i) not necessarily a “broader picture” – though it may be different from what many law schools currently offer - and (ii) both (as that paragraph demonstrates) an elision of the how and the why, and a prioritisation of a particular how that may be ethically troubling. If we present law in a primarily vocational setting that emphasises the ‘use of law for the benefit of individuals and businesses’ that seems to fit rather well with the utilitarian ethos of the times. It is pragmatic in a way that may well attract students focused on their future job prospects, though they may not actually have a great grasp of what will best equip them for the marketplace, and it may be moot whether any law degree presently fits that bill (which is, of course, one of the questions LETR is looking at). But is it what our students, and society, actually need a higher legal education to be?

At the risk of over-simplifying the issues, I worry that Scott risks prioritising a hired gun model of lawyering, by narrowing students’ understanding of the social context in which law operates to the horizon of the prospective client. Doesn’t a deeper and broader understanding of context require a grasp of the wider social functions and moral ambitions of law, and doesn’t the examination of that require some commitment among teachers of law to understanding and researching ‘law in action’ (a wider concept than law in practice?) and, dare I say it, a philosophy of both law and education, not just training? Law degrees probably should engage with the practice of law more, and I absolutely agree that understanding ‘why’ in a practical context can be a really useful trigger. But its not the only one. A wider understanding of the social context enables us to shine a critical light on, not just hold a mirror up to nature. And isn’t that the way it should be?   

 

LETR: draft literature review published

We – the LETR research team - published the draft of our main Phase 1 output, the literature review on Friday. It’s great to have this first major milestone complete, and particular credit goes to Paul Maharg, who lead the work on this phase.

LETR is distinctive relative to other reviews of education and training in starting this way with a substantial review of the existing literature, in this case dating back to the 1971 Ormrod Report. We think this should be one of its strengths: it provides an historical context, synthesizes literature from other jurisdictions and professions, and focuses on the regulatory framework to reframe existing debates and create an original analytical framework for our work. The resulting draft is a substantial piece of work – around 230 pages – and will be the most overtly academic output from the research phase of the review, though obviously our final report will do more to contextualise the literature in ways that highlight its practical and policy relevance. We will be revising the draft in due course and invite comments on it.

In the interim, we will also be publishing our first major discussion paper within the next week, calling for evience on a range of key issues.

Creativity and assessment

With the demise of UKCLE, I have got drawn into a bit more teaching this term than in recent years – even with the buyout for LETR. And I have to say I’m really enjoying it, I’ve got a nice mix of undergraduate legal theory, postgrad teaching on a module we call Foundations of Socio-Legal Theory and Research, and a joint Law and Business module – Critical Issues in Law and Management (CILM) – that my colleague Grier Palmer (Warwick Business School) has developed. CILM is one of those great modules where content in a way comes second to process. It is primarily a vehicle for developing creativity and critical thinking, and so we use a lot of student-centred activity and presentation work, a bit of open-space learning, and assess through an essay, book review, and a set of reflective logs. Its quite experimental for both the students and those of us teachng on it!

One of our experiments this year, which is linked to a larger project on case-based learning that Grier and I are involved in for Warwick’s Institute for Advanced Teaching and Learning (with colleagues from education, health, and the Medical School), has been to create a case study around the notorious Bhopal gas tragedy. Twenty-seven years after the original explosion at the Union Carbide plant in Bhopal, this is still having a massive impact on the lives of its victims  As a case study it is a massively rich and powerful teaching resource. There are lots of primary and secondary materials available, and it provides a good vehcle for exploring a range of related legal, business and human rights issues.

We decided to run the Bhopal case as a student-led activity – we have a group of 10 CILM students who take the course as a 30 credit module, rather than the usual 24. So, their ’6 CATS project’ this year was to lead the rest of the class in preparing to stage and then staging a Peoples’ Tribunal hearing on the continuing impact of the Bhopal tragedy. This work was spread over four weeks and integrated into the class time, starting with a briefing session for the 30 CATS students  in week 1, followed by a ‘book review’ session for the whole class – discussing and critically analysing a range of academic literature on the Bhopal tragedy. That in turn was followed in week 3 by a student-led session in which the 30 CATS team briefed and worked with their 24 credit peers on planning the tribunal. The tribunal itself was then held in week 4, over a two hour teaching slot.

We haven’t yet seen the 30 CATS students reflective pieces on this activity, but my initial sense is that it was reasonably successful, and something I would like to further develop. One of the great things about it was that, with a cohort of around 50 students on the module, we had two iterations of both the planning session and the Tribunal itself. This really gave the 30 CATS students an opportunity to reflect on what worked well and what didn’t, and to take action almost immediately to implement change. This worked really well in the planning session, so that the second was noticeably more structured, better managed and more dynamic – a great example of how students can really very quickly learn from experience. Interestingly, though the 30 CATS students are assessed on the whole process, not just the Tribunal, a lot of the assessment anxiety clearly homed in around the tribunal performance itself. One manifestation of this was that, though there was some really great content, the event was closely scripted and lacked a bit of the dynamism and creativity we were hoping to see. This isn’t meant as a criticism of the students; they could see it for themselves, and it one point in the second iteration, they ‘let go’ of the script and engaged in a bit of improvisation, and in that moment brought a wholly different energy to the activity .

For me it raises some interesting challenges. The assessment context clearly had a chilling effect and encouraged the students who were being assessed to play it a bit safe, even though that involved an element of discrepant reasoning, since they also knew that creativity was something they would get credit for. As a teacher, I want to maximise the opportunities for my students to think and act ‘outside of the box’, and to get credit for it; I don’t want to marginalise creativity by treating it as unassessable. I I therefore want to create a  space for enabling and encouraging risk-taking, and now I’m wondering whether that needs to be constructed as somewhere safe, or maybe it does need to be slightly edgy? I also want to get inside and disrupt that kind of intuitive cost-benefit thinking which drives them to play safe, and, I suspect, is ingrained by years of traditional assessment practices. I can already see that we may have left a gap between creativity and risk-taking, both conceptually and in terms of getting the message across about what we were looking for from this asssessment. So, a bit of work to be done!

 

Vision, what vision?

The news on 7 November that 24 universities and three FE colleges had submitted revised access agreements for 2012-13 to the Office for Fair Access (OFFA) is a deeply depressing statement on the current state of the policy and politics of English HE. Most of these new agreements were submitted close to or on the 4 November cut-off stipulated by OFFA – not surprising given that the Higher Education Funding Council for England (HEFCE) was only able publish information on the bidding process under the government’s new wheeze of a ‘core and margin’ system of funding on 17 October.

Much has been made in the media about the late timing and its impact on this year’s round of UCAS applicants, who are at present having to select their universities for next year on the basis of inaccurate financial information about fees and scholarships. OFFA has promised to publish revised agreements ahead of the UCAS cut-off of 15 January, but it will be interesting to see whether this delay has a further impact on what may already be a wobbly and uncertain year for admissions (see my last post).

For me, what is most depressing about this whole episode is the extent to which policy is simply being made on the hoof, creating even greater uncertainty for not just the students, but the sector and the local economies the universities do much to support. The government’s original great wheeze on fees didn’t work, which, worryingly, surprised no one except the government. Equally worryingly, the herd instinct once again came to the fore amongst university and college senior managers. Few obviously quite vulnerable institutions in the sector seem to have anticipated that the government would respond to force average fees closer to their desired level, or if they did foresee it, they took a rather poorly calculated risk. If nothing else, they will be exposed as the first to blink (though whether that is tactically smarter than waiting a year remains to be seen).

What this whole episode clearly exposes is the hollowness of rhetoric around the fitness and purpose of a modern HE system. This is not about efficiency. This is not about HE quality, it is most certainly not about the students. It is all about the sums. It is not a good way to run an education system.