01 October 2012

Back to school

The mishmash of global legal education regimes needs to be unified for the sake of efficient international business, argues Nigel Savage, who calls on the International Bar Association to take a lead role in levelling the playing field

By Nigel Savage

Despite the global recession there has never been a better time for the growth of employment in the international legal services market.
Opportunities range across all levels, not just the recruitment of aspiring young practitioners. In varying degrees the global trends are shaping new patterns of employment and recruitment, including: increased segmentation and specialisation, the emergence of new business models, reductions in state legal aid, commoditisation/outsourcing and the impact of technology and the willingness of students to ‘qualification shop’.
One of the problems is that, by and large, professional regulators aren’t very good at strategy and the legal education systems they oversee are generally accidents of historic development, and almost never the result of clearly articulated policy changes.

Rooted in academia

The best example of strategic change was the English Law Society’s introduction of the legal practice course in the early 1990s, which changed the face of professional legal education. Law firms have had a major influence on its development, rather than it being the product of ivory tower self-indulgence, with academics designing a course for their own enjoyment.
In the US, the American Bar Association has been a source of conservatism in the development of JD programmes and the route to qualification is jealously guarded by the courts and local bars of the 50 individual states.
Meanwhile, on continental Europe, legal education regimes are almost as disparate as the number of countries themselves, with one common feature: for the most part they remain rooted in academia at the expense of practice-orientated teaching. In the Far East, again there is a wide spectrum – Hong Kong and Singapore turn out high-quality global commercial lawyers, while in China there is almost no vocational education.
Against the backdrop of this jumble of regimes, deals are being cut across jurisdictions by lawyers who have received varying qualities of training. It is a problem borne out of the almost unavoidable self-interest of domestic regulators, who have their own internal objectives, compromises and vested interests with which to contend.
So there is an overriding need for strong, independent leadership that can consider the issues free from the baggage of historical parochial prejudices. One of the problems that lawyers face is that by the nature of their training they always look backwards for their solutions rather than confronting real-world issues.
Perhaps in all this, there is a leadership role for the IBA. Such an institution could address the issue of what is the right response in the market for legal education and how best students can be prepared for that market. And crucially linked to that point is this core question: what do lawyers do and how do we ensure they do it consistently and well?
In England, historically, recruitment of overseas lawyers – largely from the old Commonwealth, who re-qualified as English solicitors – fuelled considerable growth of the City of London’s legal sector. However, over the past few years, the balance has begun to shift.
Much of the boom in the legal profession globally is being generated in the new emerging hubs. Lawyers in those jurisdictions are probably practising English law on many of their deals and many of those young practitioners may wish to reinforce their aspirations to be ‘global lawyers’ by gaining either an English or US qualification.
The New York bar authorities allow foreign lawyers to fly in and sit the state’s qualifying exam provided those lawyers have a pre-approved degree. As a result, the New York bar is becoming the global qualification of choice because it is so accessible. English law firms – and English law schools – are disadvantaged in this battle because the solicitors’ profession still requires students to complete an apprenticeship/training contract. Indeed, US law schools have recognised this flaw in the English model and are commercially exploiting it by promoting post-graduate programmes across the globe.

Best young brains

Because the US profession has no requirement for workplace training, it is at a huge advantage when it comes to luring the best young brains from around the globe. And that could lead to New York law usurping English law as the global law of choice among international legal practices and businesses.
For example, a young Singaporean lawyer – having qualified
at the New York bar – is surely going to be more inclined, if given the option, to put a deal through under New York rather than English law.
But it is not entirely smooth sailing for the Americans and they are not making it easy on themselves – or at least that is the case in the major jurisdiction of New York. The state bar authorities have recently approved a scheme demanding that aspiring students complete 50 hours of pro bono service before being allowed to qualify at the local bar. That might be a relatively easy hurdle for domestic students to leap, but potentially a thoroughly off-putting barrier for students from overseas.
Perhaps a solution would be the creation of a globally recognised transactional lawyer qualification, which leaves issues such as advocacy and litigation rights to domestic legal profession regulators. For the sake of efficiency in an ever-competitive international business market, the legal profession needs a level qualification process playing field across the major jurisdictions. Perhaps the IBA has a role to play in this.

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