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The Legal Education Shakedown – who is footing the bill?

As a legal practitioner, business owner and parent, I am often asked to comment on the current state of affairs regarding the interaction between the legal services industry and tertiary education.  We are close to crisis point – and it is now widely recognized that there has been an oversupply of law graduates for a number of years, with 12,000 graduates each year entering a market that at present can only sustain 60,000 practitioners.  Two thirds of students indicate that they intend to practice law, but the reality is that only half of them ever will.    But fixing this may be difficult, given the large number of discrete stakeholders in the Legal world.   Universities, Practitioners, Law Firms, Publishers, the Law Society as well as those offering Practical Legal Training, all have an interest in this issue, and often little interest in cooperating with each other.

The origin of the problem is in the myth that legal study is an automatic pathway to wealth and prestige. It is true that for many hundreds of years, legal education has been highly venerated in society.  Some of history’s great leaders, thinkers and scholars have been lawyers.  But while in academic and social circles Law Graduates have been held (and have most notably held themselves) in high esteem for centuries, the idea that law as a profession is lucrative financially is fairly recent, and already firmly in decline.  It was only in the late 1970s and 1980s that ‘Law’ in the western economies became synonymous with wealth and prestige, and there is no question that the ship has already sailed.    In the modern world, Law is now like any other profession:  there are exceptions for exceptionally talented (or exceptionally lucky) people, but generally speaking the incomes are inline with other professionals.

But there is still a faint cultural perception that a Law degree at university will inevitably lead to  financial and career success.  School leavers and mature age students flock to institutions to study law with little regard to the content of the degree, merely for these perceived vocational guarantees.  Once it was announced in 2009 that the cap on University places would be lifted for the 2012 year, Universities began the process of targeted recruitment.   For these Universities, now run as competitive commercial entities, Law degrees are profitable and cost  little to deliver.   Full time students spend as little as 8 hours per week in the class room, and up to 50 hours per week pouring over text-books, case-books and online databases – but contribute as much as $1,000 per week in fees, some from the tax payer, but mostly from their HECS debt.    With competition between Universities at unprecedented levels, there is little incentive for them to ensure that applicants are suitable, or even capable, of studying the degree.  In my opinion, if Universities are to be run as competitive commercial institutions, then they too should face the consumer controls that other commercial entities face.  Section 18 of the Australian Consumer Law for example, prohibits ‘misleading and deceptive conduct in trade or commerce’.  Is it not misleading to recruit law students to expensive degrees in a manner which is so divorced from the vocational reality they face?  Alternatively,  the Australian Consumer Law also provides consumer guarantees that services be ‘reasonably fit for any purpose that the consumer, expressly or by implication, makes known to the supplier ‘.   Law firms now report that in order to be considered  for a role a graduate must be achieving a Distinction or High Distinction Average, have volunteered their time for worthy causes, been involved in impressive extra-curricular activites, be well presented, charming and (basically) better than the other 10 candidates that have those qualities.    Is a P / C average degree from a Law School ‘fit for this purpose’?

But the story for most law students is not over yet.  Those who finish, most of whom by that stage are burdened with close to $40,000 debt after 5 years of study, are then required by the Law Society to complete Practical Legal Training (also known as a “Graduate Diploma of Legal Practice”) before they can be admitted as a solicitor.  This is yet another highly competitive tertiary education marketplace, which will cost graduates roughly another $8,000 in fees for 13 weeks of study,  and very probably involve them concurrently working in a law firm without remuneration for up to 75 days.   From an academic perspective PLT offers law graduates virtually nothing they either don’t know, or should already know from many years of studying law.  In terms of practical skills, as far as many practitioners are concerned PLT offers them nothing at all – certainly nothing that they need to know to face the realities of legal practice.   It is just yet another way for tertiary institutions to perpetuate the ‘shake down’ of ambitious prospective lawyers – to squeeze another $10,000 out of them before their aspirations run dry.

It should also be understood that for at least the first two years, a new solicitor is in supervised practice in any case.    To ensure clients are protected the most important threshold , in my view, is when a practitioner seeks their unrestricted practicing certificate.  In my opinion the PLT should be abandoned completely prior to this stage.  We should allow the graduates be admitted as solicitors as soon as they have graduated from their degrees.  They can then be in supervised practice for two years.  When a solicitor seeks their unrestricted certificate,  it would be highly appropriate for the Law Society  to see them at this stage jump through some more hoops relating to ethics, confidentiality, trust accounting etc. Further exams have far greater purpose, and are better served as part of this more significant gateway.  It would also give the graduate a long overdue opportunity to earn some actual money to pay all of these fees.

And if we really want interns in law firms working for free, perhaps this should happen between high school and university.  If the school leavers were given a dose of the legal industry in advance of University, we might just save some of them 5 years and $50,000 – and potentially send them in the right direction in the first place.

* Helen Carter is the Director and founding solicitor at PCC Lawyers, a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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