My fellow slaw columnist Jordan Furlong has written a number of articles over the past few years about the shortcomings of legal education (the latest of which is here). The New York Times has also added to the debate with a recent article entitled “What They Don’t teach Law Students: Lawyering”. One of the themes floating around has been to partially return law school to its roots as a vocational school.
I had the occasion to think about some of these ideas recently when a move to Australia led me to requalify as a lawyer in a different system. Canadian lawyers in this situation typically are required to take Legal Ethics and Australian Constitutional Law with the Legal Profession Admission Board and then two online subjects, Professional Responsibility and Trust Accounting, with the College of Law. I was no exception.
The Legal Profession Admission Board (“LPAB”) is the official admitting body for lawyers in New South Wales. Its educational roots go back to 1848, a time when Australian universities did not offer law degrees and the Supreme Court set examinations for admission to the legal profession. The Barristers Admission Board and the Solicitors Admission Board provided a gateway to these exams and they finally merged in 1994 to form the Legal Profession Admission Board.
In Canada, Osgoode Hall trained Ontario lawyers in a similar manner until 1949, when a brawl erupted over whether legal education should be primarily vocational in nature or the study of law as a set of ideas. The New South Wales experience offers a sort of alternate history of what could have happened had the Law Society of Upper Canada retained control over a branch of legal education in Ontario after 1957.
In addition to the LPAB route (available in New South Wales only), you can study law in Australia as a first degree and obtain an LLB (there is a saying here that Law is the “new BA”) or you can study law as a second degree and obtain a JD.
The LPAB route appears to reflect the outcomes-based approach to education that is in favour in Australia, where the paths to the professions are generally shorter than in North America. Outcomes-based education sets the bar at a certain level and if you can jump over it, you’re in. The Canadian approach tends to be that you must follow a fixed path regardless of your circumstances. For example, to become a certified translator in Canada you must have four years of translation experience or have a relevant degree plus one year of experience and then you must pass an exam. In Australia, if you have never studied translation before and you want to become a certified translator, you simply need to pass an exam. The pass rate is not high but if you manage to pass, you’re in.
The LPAB works in tandem with the Law Extension Committee of the University of Sydney (“LEC”) to train new lawyers. The Law Extension Committee supplies the teaching, which is done by practising lawyers and university teachers, and the LPAB administers the exams. Classes are taught in the evenings from the University of Sydney campuses near the barristers’ chambers in the central business district and at Camperdown.
External students (students who live outside Sydney) attend weekend schools, which are typically held twice per semester on campus. The weekend schools are condensed versions of the evening classes.
Many foreign lawyers who want to requalify in other Australian states such as Queensland or Western Australia study with the LPAB/LEC in New South Wales and then transfer back to their respective jurisdictions. The requalification process appears to be more streamlined and cost-effective in New South Wales than in other states and it is easy to transfer between Australian jurisdictions.
However, most of the students who study at the LPAB are not foreign lawyers who are requalifying in Australia but rather Australians who work full-time as police officers, nurses, paralegals, or legal secretaries and who have decided that they want to become lawyers. Many do not have a university degree and the LPAB route to legal practice does not result in them obtaining a law degree. What they end up with is a Diploma in Law, which is considered to be equivalent to a law degree for the purpose of obtaining a practising certificate.
It goes without saying that these law students have a practical orientation and they are a far cry from the stereotypical law student who has done nothing but study and who will have difficulty integrating into the real world of legal practice. They are able to hit the ground running.
The late Alison Youngman, a former Stikeman Elliott partner, was typical of such a student. She joined the firm as a law clerk in 1972. While working, she completed a BA in political science and economics and subsequently was sponsored by Fraser Elliott to go to law school full-time for three years. Under the New South Wales system, she would have been able to commence her legal studies three years after beginning work as a paralegal.
From what I’ve been told, many LPAB graduates do very well as lawyers and alumni include former High Court Justice Michael McHugh.
In attending LEC classes (I finished my studies in March, 2011), I found the environment to be both different from traditional law school and yet very familiar at the same time. The student body is diverse in terms of age and socio-economic background. There appears to be a lot of cooperation among students, with students focused on passing their subjects while balancing the workload with career and family demands. The teaching style is a meat-and-potatoes, black letter approach.
Exams are mainly closed book and are as challenging as the ones I sat in law school in Canada. The main difference in the exams is the failure rate, which can be as high as 33 percent in some subjects such as Contracts. The program appears to have a significantly higher attrition rate than university-based law school.
Accessibility and affordability are strengths of this approach to legal education. Because there is no research component to studying through the LPAB, students are not paying to subsidize legal journal articles (the cost of which has been estimated at USD 100,000 per law review article).
Fees are AUD 630 per subject and the total cost of study if you were to pass every subject on the first try would be about AUD 13,000. By way of comparison, the domestic tuition cost for a 3-year JD at the University of Sydney is AUD 91,440.
Once I get past the rebellious notion in my head that you really should have to have a law degree to become a lawyer, my main reservations about the program have to do with the difference in the quality of the experience for external students. No video or audio podcasts of the evening lectures are made available to them. Apparently many of them perform well on the exams, their minds uncluttered by the irrelevant-to-the-exam details of each subject not taught at the weekend schools. One external student who approached me for tutoring claimed to have passed all his subjects save one without ever having set foot in a classroom.
Another issue, which has more to do with a proliferation of new law schools in recent years than with the LPAB, is that the Australian legal market appears to be seriously oversupplied. Ontario has 32,950 lawyers (not counting those who are retired or outside Ontario) serving a population of 13.2 million. New South Wales has 25,300 lawyers (23,760 solicitors with practising certificates and 1,540 barristers) serving a population of 7.2 million. In other words, New South Wales has 41 percent more lawyers per capita than Ontario. It appears that Australia saves the hurdles for those who want to become barristers.