Implementing the LETR

I was sorry to miss the latest Westminster Legal Policy Forum (WLPF) event in London on 5 November, but unfortunately I was otherwise occupied in the southern hemisphere. The event was timely, given that the SRA has recently published its consultation on its draft competences and the BSB have also just given us some further detail of their training strategy (though still not a lot – HT here to Steven Vaughan’s recent guest blog on Richard Moorhead’s Lawyer Watch).

The WLPF summarised the event as follows:

Sessions brought together key stakeholders working across the current legal education and training framework – including colleges, universities, careers advisory services, vocational training providers and regulators – alongside law firms, chambers and wider legal employers. Delegates had particular opportunity to consider the prospects for developing new qualification pathways and access routes to legal professions, as well as possible changes to competency frameworks and Continuing Professional Development. Sessions also focused on current proposals to streamline regulatory involvement in education and training processes, and the challenges ahead for a revised framework in supporting both innovation and standards.

The work of the LETR research team is, of course, long-finished, but it was good to see that my colleague on the team Professor Avrom Sherr was invited to open the event and did so, in his own words, by going provocatively “off message”, not least on the challenge to the representative bodies to maintain their relevance after the Legal Services Act; on the tendency of the LETR to be about “regulation, regulation, regulation” rather than “education, education, education”, and on the potential boringness of the SRA’s competence statement. This all bodes rather well for our joint Upjohn Lecture in January 2015!

I have storified all the tweets I could track from the WLPF event here (in reverse chronology):

When Facebook doesn’t ‘like’ lawyers

…it sues them. Or so it seems given the recent civil complaint filed by Facebook and its CEO Mark Zuckerberg in New York last week. The claim has been brought against DLA Piper, Lippes Mathias Wexler Friedman, Milberg LLP, and Paul Argentieri & Assoc., and a numbers of named partners in those firms.

The case arises out of an attempt, since 2010, by Paul Ceglia to establish a claim to ownersip of a substantial share of Facebook, actions which have so far led not only to the summary dismissal of Ceglia’s civil suit in 2013, but to Ceglia’s indictment before a grand jury on criminal fraud charges. (Though it should be noted both that the criminal charges have not yet come to trial, and that Ceglia has appealed the dismissal of his civil claim against Zuckerberg – the latter one assumes more in hope than expectation given the Magistrate Judge’s damning comments on the quality of Ceglia’s evidence).

The case against DLA Piper (US) and the other law firms is of interest for a number of reasons, beyond the spectator sport of a big corporation turning on ‘big law’ (what some may see as a variation on Oscar Wilde’s theme of the unspeakable in pursuit of the uneatable). It will almost certainly raise procedural-ethical issues regarding lawyer-client privilege, and, further, the lawyers’ duty not to mislead the court. In the latter context it also raises a larger meta-ethical issue for the court, as to its willingness to permit a plaintiff with deep pockets to pursue lawyers through the courts for (allegedly) just doing their job… or not.

And that will be the crux of the case. Ceglia managed to go through lawyers faster than the proverbial knife through butter before his claim was dismissed. Facebook’s full complaint (posted here by Above the Law) has been selective in choosing as its targets those that it sees as most culpable. The defendant most vulnerable in this regard is surely Paul Argentieri and his firm, since the local NY attorney Argentieri is not only the lawyer who has lasted longest by Ceglia’s side, but the one who devised the initial litigation strategy that sought to bolster the credibility of Ceglia’s claim precisely by bringing in a number of ‘blue chip’ firms like DLA Piper. It is of course this very strategy that now threatens those who bought into it with a very uncomfortable few months, and which gives Facebook’s (civil) claims of malicious prosecution and conspiracy at least a scintilla of a chance – or better.

The liability of DLA Piper, Milberg and others will likely turn on key events between the end of March 2011 and May 2012, when Milberg lawyers Dumain and Young withdrew. Ceglia’s claim was based primarily on a contract with Zuckerberg which appeared to show that the latter was engaged by Ceglia to work on “The Face Book” and another project called “StreetFax”. Around the end of March 2011 one of Ceglia’s attorneys (from Kasowitz, Benson, Torres & Friedman) found what appeared to be an original of this contract on Ceglia’s computer hard drive, but without the whole first page which made reference to Facebook. This led the Kasowitz attorneys to the conclusion that the ‘StreetFax’ contract was redrafted long after the event to include Facebook, and Ceglia’s claim was therefore fraudulent. Kasowitz immediately withdrew from representation, communicating its concerns about the apparent forgery to Argentieri. DLA Piper and Lippes Mathias continued to represent Ceglia. DLA apparently playing a significant part in amending, and bolstering Ceglia’s complaint by reference to emails (the provenance of which also came to be heavily contested) said to be between Ceglia and Zuckerberg, but which had not been mentioned in the original complaint. The Amended Complaint was filed on 11th April, and on that same day another of Ceglia’s representative firms, Connors & Vilardo withdrew their representation, being replaced by additional counsel from DLA Piper. On 13th April, attorney Marks of Kasowitz wrote to Lippes Matthias, DLA Piper and Argentieri, memorialising his earlier discoveries about the contract and prior communications with Argentieri. Marks indicated that he would not report the matter to the District Court pending an investigation promised by Dennis Vacco of Lippes Matthias. Whether there was an investigation by Vacco is moot, but it appears that DLA Piper and Lippes Matthias continued to represent Ceglia into June 2011, with both firms withdrawing only at the end of the month, and on the eve of a court hearing brought by Facebook seeking expedited discovery.  Neither of these firms (nor Kasowitz) appears to have alerted the court as to concerns as to the falsity of any facts as alleged by Ceglia. After the withdrawal of his counsel Ceglia continued to be represented by Argentieri and a San Diego sole practitioner, Jeffrey Lake (until 18th October 2011), when the lawyer merry-go-round set off again. The final defendant firm, Milberg joined the action in early March 2012, withdrawing at the end of May,  There appears to be some uncertainty as to why Milberg withdrew, but, again, nothing in the public record indicates that they raised concerns of a possible fraud on the court.

At the core of Facebook’s case, then, seems to be a claim that the failure of successive firms to disclose why they were withdrawing effectively kept Ceglia’s action on the road, and forced the company to keep defending long after the wheels should have come off what was (in the view of Facebook/Zuckerberg) a groundless scam. But that by itself is unlikely to be enough for Facebook/Zuckerberg to win in court. The action here is proceeding on the basis of two tortious claims: malicious prosecution and deceit/collusion with intent to deceive a court (the latter specifically under the New York Judiciary Law). Malicious prosecution is not easy to establish: the plaintiff needs to show the suit was brought without probable cause, initiated out of actual malice, and (in New York) there is also a requirement to show special damage. Each of these requirements set the bar high for a plaintiff. Probable cause may be the least of it: if the defendants can be shown to have known, or ought reasonably to have known that Ceglia was engaging in fraud, perjury or the suppression of evidence, then that element could well be satisfied. Proving malice and special damage is likely to be more difficult, though the extent to which the defendants investigated Ceglia’s claims is certainly a matter that Facebook will pursue, as failure to investigate may itself be regarded as evidence of malice.

Discovery will likely be interesting; some evidence is already in the public domain from the original action, but we must wait to see how critical a part lawyer-client privilege (and the crime/fraud exception) will play in limiting the defendants’ exposure to scrutiny.

How the second action for deceit plays out will also be interesting. Courts do not like being deceived, and that is clearly reflected in section 487 of the NY Judiciary Law, which not only creates a specific action of deceiving the court, but requires the court to award treble damages where deceit is proven. But courts are also nervous of being used by plaintiffs for purely strategic or vengeful ends, and there is some concern, particularly in the US, following the Chevron litigation, that corporate plaintiffs are adopting a tactic of using the courts to deter lawyers from acting against them.

While I can’t say I’m a fan of corporate power in the courtroom, I’m not particularly convinced by that argument either, given its continuing dependence on the ideal-typical lawyer as a disinterested neutral partisan. There is surely a risk with high profile-high value litigation that lawyer self-interest gets significantly caught up in the mix, not least because success in a high value claim not only offers a substantial payday for the firm (particularly if the case is run on a generous contingency), but because it can be a reputation-maker for the lawyers involved. Whether that is what happened in the original Ceglia case, we must wait and see, but the tendency of some very experienced and high profile firms to get involved in this case, particularly as more and more lawyers pulled out, seems hard to explain on entirely rational grounds – at least with the benefit of hindsight!

If the Facebook claim does get to trial (and I would hesitate to bet against it, despite the obstacles) the outcome if the defendants lose are not going to be pretty, either financially or reputationally. Moreover though this action, of course, does not have a disciplinary function, a finding against the lawyers involved for Ceglia could also have disciplinary consequences for them, as proof of malicious prosecution would surely offer at least prima facie evidence of breaches of their professional obligations to the court (here under rules 3.1 and 3.3 of the New York Rules of Professional Conduct).

Judge Posner, J.S. Mill and Same-Sex Marriage

Sometimes the gods of happy coincidence smile down on us as law teachers. This last week I have been working with my Legal Theory students on rights and freedom, and on Thursday Judge Richard Posner handed down the (unanimous) decision of the US Court of Appeals, Seventh Circuit in Baskin v Bogan, striking down legislative bans on same-sex marriage in the states of Indiana and Wisconsin.

In a closely argued 40-page opinion Judge Posner finds that the states’ bans breach the Equal Protection Clause of the US Constitution. The case does not address the argument that gay marriage should be permitted as a fundamental right. The decision thus sits within a framework of classical Equal Protection ‘suspect class’ legal analysis. It finds that the same-sex-marriage bans discriminate on the basis of sexual orientation, and that such classification, being based on an immutable characteristic of the group discriminated against, proceeds along ‘suspect lines’. Consequently the obligation falls on the states seeking to uphold the ban to rebut the presumption that they have breached the Equal Protection Clause, by showing that they have a compelling justification for their marriage limitations. This, in the court’s judgment, Indiana and Wisconsin both wholly failed to do. ‘Simples’ as a certain meerkat might say.

In truth, attempts to defend same-sex marriage bans have been facing a struggle in the US ever since the possibility of direct moral condemnation of homosexuality was precluded by Lawrence v. Texas. The defendants arguments in Baskin v Bogan were objectively weak, and there can be little question that Posner does an effective and at times humorously serious job of highlighting the implausibility (if not absurdity) of the arguments and hence the irrationality of the states’ discrimination. The analysis is littered with some extremely pithy observations – one of the most striking perhaps being that bans on same-sex marriage are even more onerous than bans on interracial marriage because they allow gay people no real prospect of marriage at all, whereas intra-racial marriages were at least permitted (p. 29).

But it’s in its reasoning and its (unusually) explicit philosophical basis that the judgment gets interesting for my purposes. In the course of argument Posner reframes the case within a distinctly Millian consequentialism, arguing that legal intervention is only justified where the act complained of causes harm to another’s person or interests. This can be seen in three key points of the judgment. First, Posner establishes that the denial of same-sex marriage causes significant harms (economic and psychological) to members of the gay community. Secondly, he rejects the idea (in the absence of any concrete evidence to the contrary) that permitting same-sex marriage of itself undermines the institution of marriage in expressly Millian terms:

We know that many people want to enter into a same-sex marriage (there are millions of homosexual Americans, though of course not all of them want to marry), and that forbidding them to do so imposes a heavy cost, financial and emotional, on them and their children. What Wisconsin has not told us is whether any heterosexuals have been harmed by same-sex marriage. Obviously many people are distressed by the idea or reality of such marriage; otherwise these two cases wouldn’t be here. But there is a difference, famously emphasized by John Stuart Mill in On Liberty (1869), between the distress that is caused by an assault, or a theft of property, or an invasion of privacy, or for that matter discrimination, and the distress that is caused by behavior that disgusts some people but does no (other) harm to them. Mill argued that neither law (government regulation) nor morality (condemnation by public opinion) has any proper concern with acts that, unlike a punch in the nose, inflict no temporal harm on another person without consent or justification. The qualification temporal is key. To be the basis of legal or moral concern, Mill argued, the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual….

….[W]hile many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts. (33-34).

Thirdly, Posner then turns to the argument that the primary or sole reason for marriage law

 is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility. The state recognizes that some or even many homosexuals want to enter into same-sex marriages, but points out that many people want to enter into relations that government refuses to enforce or protect (friendship being a notable example). Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homosexual sex cannot result in unintended births. (15)

 Posner addresses this claim over more than six pages of argument which, he asserts, demonstrate that the grounds advanced by lawyers for the two states “are not only conjectural; they are totally implausible.” He achieves this in two ways, by highlighting logical fallacies and inconsistencies in the argument, eg:

At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure. (19-20)

 

and by countering the evidential grounds relied on, eg:

The state’s claim that conventional marriage is the solution to that problem is belied by the state’s experience with births out of wedlock. Accidental pregnancies are found among married couples as well as unmarried couples, and among individuals who are not in a committed relationship and have sexual intercourse that results in an unintended pregnancy. But the state believes that married couples are less likely to abandon a child of the marriage even if the child’s birth was unintended. So if the state’s policy of trying to channel procreative sex into marriage were succeeding, we would expect a drop in the percentage of children born to an unmarried woman, or at least not an increase in that percentage. Yet in fact that percentage has been rising even since Indiana in 1997 reenacted its prohibition of same-sex marriage…. There is no indication that these states’ laws, ostensibly aimed at channeling procreation into marriage, have had any such effect. (23-24)

In both cases the sum effect is to demonstrate that the claimed benefits of the discriminatory policy do not or cannot justify the harms caused.

In the end, the Indiana and Wisconsin claims do not really constitute a hard case in the classical sense, but they are of interest in demonstrating how a judge can directly employ philosophical reasoning. I think they can also help highlight both the extent to which ‘harm’ itself can be a slippery concept, and that cases will often involve assessing competing harms, (as Posner observes, the state must be able to demonstrate that “the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” – p.5) rather than the straightforward choice between harm and no-harm that much of Mill seems to assume. Doubtless Posner would also contend that his consequentialism provides a more objective mechanism for dealing with such issues than a lengthy debate about fundamental rights or human dignity, but we are still left with the limitations of a consequentialist approach. The extent to which Posner’s approach relies on evidence of benefit/detriment is, arguably, one of its strengths – so long as the evidence is there, and is reliable, but what if the harms are finely balanced, or both sides are reduced equally to conjecture? Moreover, despite some fairly critical comments about elements of the defendants’ attempts to link marriage and parenting, Posner’s own reasoning relies heavily on the benefits of marital status to the adopted children of same-sex families, an argument that potentially falls flat in contexts where gay couples are still denied the right to adopt as well as the right to marry.

 

 

‘Just Encounters’: The Minutes of Evidence Project

I spent a fascinating day at the State Library of Victoria on friday hearing about the ARC-funded ‘Minutes of Evidence’ (MoE) Project.The MoE website describes the project in these terms:

It is a unique collaboration between researchers, education experts, performance artists and community and government agencies that seeks to promote greater awareness of the effects of settler colonialism and a more open consideration of how to live together justly in the future. Through a bold, multi-disciplinary approach that brings together research, education and performance, the Minutes of Evidence project highlights the local and broader significance of the 1881 Parliamentary Coranderrk Inquiry by examining how notions of justice have been formulated, invoked and confronted over time and space, and how the enduring legacies of past injustices continue into the present – despite official responses designed to redress them – so as to foster new ways of thinking about structural justice in the present and future. 

I’d heard about the project whilst still in the UK, but this was my first opportunity to properly engage with it. The event was a day conference called ‘Just Encounters: Bringing Together Education, Arts and Research’ which showcased the work the project has been doing over the last four years to reconstruct the formal record of the Coranderrk Inquiry – the Minutes of Evidence of the project title – into a work of “verbatim theatre”, to develop a set of teaching resources on Coranderrk for teachers of history and civics in schools, and to use it as a vehicle to reflect on and engage with issues of ‘structural justice’. Structural justice, it should be said, can be seen as a sub-set of social justice, focussed in this context on redressing the historical and structural harms caused by settler colonialism.

The Coranderrk Inquiry itself was an extraordinary event for its time. Coranderrk was the name given in the 1860s to one of the most liberal and successful of the Aboriginal reserves established in the colony to receive surviving members of the Aboriginal clans that had been displaced by colonial expansion and settlement. In 1874 the sympathetic (European) manager of Coranderrk, John Green, was removed for his opposition to a plan by the so-called Board for the Protection of Aborigines to remove the Aboriginal population and release the 4000+ acres of the station for use by white settler farmers. Under the leadership of their headmen, William Barak and Thomas Bamfield (Birdarak), the Coranderrk residents mobilised into a powerful political protest movement over a period of several years. By adopting the techniques of white political (written) discourse to bring attention to their campaign for self-determination, they forced the state to take notice and set-up a Parliamentary Commission to inquire into their complaints and determine the future of the station. Before the Commissioners, the Coranderrk families succeeded in having the new manager dismissed and, ultimately, in getting Coranderrk formally recognised as a permanent reserve. Their victory was, however, shortlived, as the Victorian government responded by passing the apartheid ‘Half-Caste Act’ of 1886, which forced younger mixed-race men and women off of the reserves and (nominally) into the white population, breaking up families and forcing Coranderrk into a process of slow decline, finally closing in 1924.

The event on Friday included a staged reading of extracts from the verbatim play Coranderrk: We Will Show the Country, written by Giordano Nanni (of Melbourne Uni) and Yorta Yorta/Kurnai playwright, Andrea James, and produced by La Mama Theatre. It was extraordinarly powerful. If anything the device of verbatim theatre, and the knowledge that you were hearing the testimony of witnesses in the words spoken 130 odd years ago added to the poigniancy, and reminded me powerfully of some of the ideas and effects explored in Edinburgh as part of the Beyond Text in Legal Education project (see my earlier post here; though verbatim theatre was not an approach we considered in that context, it can clearly be used, like techniques such as theatre of the oppressed, to foster engagement with, not just awareness of, enduring injustice). Moreover, having coincidentally spent part of last week exploring the Mabo case with my legal theory students, I was doubly confronted after Coranderrk with the historical and contemporary reality of structural injustices on which a one-time colonial state like Australia was and continues to be built. The script has been published as a book by the Aboriginal studies Press (Canberra, 2013). Get it if you can.      

From Warwick to Melbourne…

Apologies to readers of this blog for (yet another) long silence. This one has reflected the double whammy of trying to complete a number of writing commitments from my research leave at Warwick, whilst simultaneously packing-up home and office to move hemispheres and take up my new appointment as Professor of Law at the University of Melbourne.

It has been a strange few months to say the least. I can’t deny that I’m sorry to be leaving Warwick. I have had the privilege of working with some great colleagues in both UKCLE and the Law School over the last eight years, and as a Warwick graduate myself, returning to work there always felt a bit special. We will miss a lot about Warwick town too, which has very much been our home, somewhere where we have made some great friends and really enjoyed becoming a part of the community.

But the lure of Melbourne was too hard to resist: an oustandingly good law school in a really vibrant and cosmopolitan city, and its closer to all our NZ family. It would have been crazy not to….

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Professionally, the research and teaching opportunities are exciting. Teaching legal ethics will be a core part of the job, and I am looking forward to using that as a vehicle to get back into some more mainstream legal ethics research. Another big attraction, of course, is the opportunity to explore, first hand, the impact of the Australian regulatory reforms on the legal services market, and hopefully to develop some comparative work on legal services, the profession and its ethics in Australia and the UK. Consequently, while the move to Australia is very much intended to be long-term, and will bring a new focus to my work, I will be continuing to keep an eye on and writing about UK developments as well.

Reforming solicitors’ CPD

At its meeting on 21 May the Solicitors Regulation Authority (SRA) Board approved the move by the SRA to implement a new system of ‘continuing competence’ to replace the current, and largely discredited, input-led CPD scheme for solicitors in England and Wales. The decision remains subject to approval by the Legal Services Board, but if approved (as seems likely) the new ‘scheme’ will be phased in from Spring 2015, for early adopters, coming fully into force in November 2016.

The changes follow-on from a consultation document published in February which spelt out three optionsfor CPD:

 Option 1, the SRA’s preferred option, which would  revoke the current CPD scheme and rely instead on existing conduct of business regulation, requiring a proper standard of legal work and of training and supervision. Option one would be supported by non-mandatory guidance;

Option 2, would replace the current CPD scheme with a new cyclical/outputs based framework, imposing a requirement to reflect on practice and implement a development plan without a mandatory hours requirement; and

Option 3, would retain the current requirement to do a minimum number of CPD hours, and would require the training to relate to current or anticipated legal practice and recognise a wider range of development activity.

The consultation on these options received 64 responses in total – unsurprising, perhaps, but still depressingly low given the scale and significance of the changes being proposed. Understandably the SRA did not therefore attach a great deal of weight to the numbers in its response to the consultation, instead addressing the responses more qualitatively. Nonetheless it is interesting, if somewhat unsurprising (again) that the majority, 33, including the Law Society,  opted for Option 3 (13 expressed no preference for any of the options). This was, of course, the most familiar and conservative alternative given, and the one least consistent with best practice highlighted by the LETR Report! The SRA has nonetheless opted for its original preference, Option 1, on the basis that it focuses on the effectiveness of training, gives individuals—and firms—more flexibility and choice in selecting appropriate training, and reduces the burden of regulation. The changes will also mean that training providers will no longer require authorisation from the SRA.

 So has the SRA got it right? If it was to drag CPD into the 21st century, it had to choose Option 1 or 2, and to that extent should be applauded. Option 3 in that sense always struck me as a hostage to fortune for the SRA, unless it was going to ignore both what came out of the LETR Report (see paras 2.147-2.166, 6.72-6.95) and the LSB’s statutory guidance.

But equally there are significant risks with Option 1, given the extent to which it deregulates CPD. In this regard it comes close to the system developed in Alberta, Canada, and it is notable that, for all its strengths, that scheme has run into some challenges in making  individuals properly accountable for completing their CPD. Option 1, more than Option 2, begs the question always begged by heavy reliance on what is essentially principles-based regulation, namely: how do you enforce a culture change where there are no clear rules? The SRA in its response has recognised that there will need to be a significant culture change, and has therefore proposed a substantial transition period from Feb 2015 to Nov. 2016 to facilitate that. But this still means that the SRA is relying predominantly on the guidance it will produce, and that of course will be, by definition, non-mandatory, so the question still remains. Moreover, if the SRA is to rely ultimately on the broad obligations to deliver an acceptable quality of work/training, as the Legal Services Consumer Panel’s response noted, it will be interesting to see how it plans to go about identifying a lack of quality such as to trigger monitoring or enforcement action. The link between quality and CPD is not straightforward; if the SRA gets this wrong it may well increase rather than reduce the likelihood that some system of professional re-accreditation will be required sooner rather than later.

More generally, given the statutory responsibilities on the SRA, I also think it is unfortunate that there has been so little analysis of how the proposed changes achieve the Legal Services Act regulatory objectives. For example, how differently does each option support the public and consumer interests? The risk that regulatory intervention relating to CPD may not go far enough in protecting the public interest has already been highlighted, but it could as easily go further than required. How does it contribute to the development of a strong, independent, effective and diverse profession?  In the latter context in particular, the LETR Report highlighted needs for continuing ethics, management skills and diversity training (Rec. 9) – do these become non-mandatory under Option 1. If so is that consistent with the objective? How much Option 1 relative to Option 2 reduces the regulatory burden for firms, rather than for the SRA, may also be moot.

Ultimately, though, the key question is, will it make a significant difference to the kind of learning that takes place, and to the extent to which practitioners are enabled to catch their breath and actually reflect on what they are doing? For the answer to that we must wait with baited breath (or maybe not…); the evidence certainly suggests the potential is there, though option 1 again raises the stakes by placing a premium on firm culture in a way that few systems have attempted to date.

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Plus ca change

In the week that the “iconoclastic” (according to Legal Business ) Professor Nigel Savage announces his pending retirement as President of the University of Law, it is interesting to reflect on the words of another senior vocational provider, commenting on the need to develop a more effective system of blended learning between the classroom and the office for the training of would-be solicitors:

…. a reform in this direction will eventually be forced upon the profession by the growing complexity of the law and the absurdity of spending many thousands a year on an official system of legal education which is debarred by out-of-date restrictions from giving of its best.

Sounds familiar? But the rub is the quote’s not from one of Nigel’s competitors at Kaplan or BPP, or any other current LPC provider, it was said by Dr G.R.Y. (Geoffrey) Radcliffe, Principal of the Law Society’s School of Law and Fellow of New College, Oxford in July 1939 during his Presidential address to the Society of Public Teachers of Law. Moreover, it referred to an even earlier proposal of the Cardiff Law Society that the (then) five year period of articles should be organised on what we might today call a sandwich model, layering sequential ten month blocks at law school, with 15 month blocks in the office. No disrespect to much that Nigel Savage has achieved, but given that 75 years on we are still engaged in variations of the same debate, how do we define iconoclasm in legal education? And when we’ve worked that out, could someone please tell the journos at Legal Business?