Apprenticeship: The New Route To Becoming A Lawyer? – by David Howarth

January 25, 2013

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Photo: edbrambley, Creative Commons 2.0

Photo: edbrambley, Creative Commons 2.0

What is the value of a law degree to the legal profession? The question arises again in the wake of an  announcement by UK Skills Minister Matthew Hancock that he is encouraging the development of a non-graduate ‘apprenticeship’ route to qualification as a lawyer. Law teachers might complain that no one is suggesting that medicine should become open to non-graduate apprentices. Why should law be treated differently?

The trouble is, law is already different. Non-medical graduates, especially those in non-relevant subjects, who want to become doctors usually have to start again at the beginning of an undergraduate medical degree.  In contrast, a graduate in any other subject, no matter how distant from law, can catch up with their law degree-holding contemporaries by taking a one-year conversion course.

The biggest UK law firms are far from hostile to converts from other disciplines. When law firms were still regularly hiring trainees, 40% were non-law graduates. To underline the point, a Supreme Court justice, Jonathan Sumption, is about to tell the Cambridge Law Faculty, ‘Those who wish to practise law should not study law at university.’ Smaller firms, with less ability to carry out their own training, seem more to favour law graduates, but they are also the target of the government’s apprenticeship initiative.

As I have frequently found, it is instructive to compare lawyers to engineers. In the UK, it is possible to become a Chartered Engineer without a degree, just as it is already possible, but not easy, to become a solicitor without a degree (through the Chartered Legal Executive route), but no one would argue that it is preferable for engineers to have no engineering degree and it would be amazing if 40% of new engineering entrants at consulting engineering firms had degrees in politics or economics. Indeed, the reaction of the engineering profession to government pressure to provide new routes into the profession for those who felt excluded by the conventional academic route was to exhibit considerable confidence in the universities by helping to create unconventional university degrees in engineering. Part of the idea is that everyone wanting to become an engineer through part-time study and work-based learning will be assigned an academic tutor, who will not only advise on academic matters but also assess the work produced from everyday work. Could the legal professions and law faculties assemble a similar solution? I fear not.

The fundamental problem is that a missing link exists between what lawyers do and what law faculties both teach and research. What most lawyers do most of the time is not, as popularly believed, litigation, but drafting – everything from wills and conveyances to statutes and constitutions, but, above all, agreements. Law as currently taught and researched, however, rarely if ever produces a draft of anything. It might provide useful background information about what needs to be covered and where traps might lie, but neither the process of moving from background legal discussion to the foreground of completing a specific task nor the detailed process of choosing the right words feature in conventional law courses or in conventional legal research. As a result, the idea of a university law degree incorporating academically assessed work-based learning seems highly implausible. How would academics be able to tell whether they were looking at a well-drafted contract or a poorly drafted one?

The same missing link also explains, I believe, the seeming indifference of much of the legal profession about whether trainees hold law degrees. Law students are often presented with very detailed accounts of substantive law concentrating on points of uncertainty and controversy. Legal research tends to do the same. Those accounts might conceivably be of use to those few lawyers who litigate in the appellate courts – although by the time students reach such heights the law almost certainly will have moved on – but for most lawyers most of the time the only reason to know much about uncertain and controversial points is to be able to draft around them. Legal education tends to provide too much and too little – too much detail about interesting but peripheral issues and too little about how to use the law to get things done.

Karl Llewellyn, the great US legal scholar, himself an aficionado of appellate court decisions, remembered his brief experience as a commercial lawyer at the New York firm Shearman and Sterling thus:

‘If I were a court’, my old chief W. W. Lancaster used to say gently but very firmly, when I had worked out what I thought a neat but novel road through a difficulty –‘“If I were a court, Mr. Llewellyn, you would persuade me. But I am not a court; I am counsel for a bank. Surely you can find a way which will not raise these – doubtless untenable – doubts.’

Law from the point of view of lawyers like W. W. Lancaster, which is to say most lawyers, is about how to achieve what their clients need to achieve. Arguing novel points is for them the last resort of the desperate. Good lawyering creates effective devices out of solid law.

We might also ask whether law degrees are currently helpful for another problem lawyers face, namely understanding what their clients want. The assumption of most legal education at degree level is that clients want only one thing: to win in a litigated case, or at least to know when they should give in. That might work for future litigators but in the real world of transactions and regulatory compliance, clients’ objectives are more complex and dependent on context. Understanding a commercial contract means understanding the commercial context. Understanding a new regulation means understanding the political and administrative context. As long as law degrees offer nothing to help future lawyers understand context, it might be reasonable for practising lawyers to assume that the only way to acquire understanding of what clients want is on the job. In fact, more systematic and evidence-based approaches to understanding business and government have much to offer, but currently British law students have next to no access to them.

Some legal academics might think that the value of a law degree to the profession does not matter, that studying law is valuable in itself as an intellectual exercise. But in a world in which no one needs a conventional law degree to practise law and in which, if there are students prepared to spend tens of thousands of pounds on tuition fees for pure intellectual stimulation, they will surely choose more inherently interesting subjects, they might want to think again.

David HowarthDavid Howarth is Director of the Master’s in Public Policy and Reader in Law at the University of Cambridge. He is the author of  Law as Engineering: Thinking About What Lawyers Do, which will be published in hardback next month. He was previously a member of the UK Parliament and shadow Secretary of State for Justice.

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