by Mr. Paul Mitchard QC (CUHK LAW)
Introduction
This article contains the substance of a presentation I gave at CUHK LAW’s Directions in Legal Education Conference in June 2020 but has an additional focus upon what can be learnt from the position in Hong Kong.
Unlike the presentations of many of the speakers at the conference, whose contributions were based upon academic research, I have instead relied upon feedback from students and employers in my role as Careers Director at CUHK LAW over almost 6 years and from my own time as a partner successively in three international law firms, recruiting around the world over the prior 30 or so years.
I also summarise a case study that we propose to undertake, over the next 18 months, in order to see what our research here will tell us about the current status of professional training in legal education, what lessons it has for the legal world and where this may lead us, as educators, for the future.
What is Professionalism?
The concept of professionalism itself embraces:
(1) certain commonly-recognised international norms,
(2) standards typically expected in international legal practice,
(3) national laws bearing on professional standards,
(4) standards required by professional bodies and
(5) professional behavioural norms.
But, so far as law firm recruitment is concerned, I would argue that this extends further into all the non-legal aspects of what might be termed ‘vocational’ training for a legal career.
So far as international standards go, those which are typically applied to lawyers are a commitment to the rule of law and compliance with recognised reporting standards, for example under AML and CTF regulations, as well as globally recognised ethical standards such as those contained in the IBA International Principles on Conduct for the Legal Profession.
These Principles cover (1) the provision of independent, unbiased advice and representation, (2) honesty, integrity and fairness, (3) avoiding conflicts of interest, (4) confidentiality and (5) treating clients’ interests as paramount, as well as other more practice-specific principles concerning, for example, the handling of client money.
Few would dispute that ‘professionalism’, as it is commonly understood and as applied to lawyers at least, goes further than these basic professional standards and extends also to professional behavioural norms – principally personal integrity, manifesting a professional demeanour and personal conduct, such as non-discriminatory behaviour, cultural awareness and observing proper office etiquette.
In my experience, those involved with legal recruitment, certainly at the higher end of the legal market, would also include, within the class of personal behaviour they expect to see from applicants, evidence of general ‘lawyer’ skills such as effective communication, leadership, team working and organisation as well as an ability to demonstrate good judgment. Others look for more specific skills such as advocacy and negotiation.
Finally, I would strongly argue that included within the expected ‘professional’ attributes required by all but some of the smallest law firms today are also a basic knowledge of financial and business skills, and understanding of legal business - including client care, trends in legal practice, recognising and managing change, what partnership means and law firm management and also extending to the effective use of technology in the delivery of legal services.
Whereas this was not the case in my days as a law student, the promulgation by law firms themselves and by legal business journals of information about the business of law, including publication of information about partnership structures and profitability, law firm employee demographics and gender representation through media that did not exist at that time, i.e. the desktop (or more likely today the smart phone), mean that there is little excuse for a failure to have at least a basic grasp of these areas as part of the ‘professional’ preparation for a career in the law.
Why is Professional Training for Lawyers Important? What is the Future for Professionalism?
The means of delivery of legal services is undoubtedly changing, not only through workplace technology but also in terms of the use of new video conferencing social media and other forms of communication with its own protocols such as ‘netiquette’. Inroads are being made by the accountants and so-called ‘alternative legal service providers’ (ALSP’s) into traditional law firm practice areas.
But, even in today’s tech-dominated world, in my experience clients expect certain standards of professional behaviour from lawyers: indeed, as noted above, it might be said there is now a higher premium on interpersonal skills. This is borne out by trends in other common law jurisdictions where those responsible for setting standards for entry into the profession have increasingly in recent years brought such vocational training within the ambit of criteria for admission into the legal profession.
Although contacts between lawyers and clients and between lawyers and third parties have without doubt become less formal than, say, 20 years ago, there is little sign that expectations as regards professional standards and professional behaviour have changed to any material extent.
In today’s technologically advanced world, where many traditional legal jobs such as drafting contracts, can be carried out using technology, with an increasing role for AI, there is indeed arguably now a greater premium than ever placed upon interpersonal skills as those jobs disappear and lawyers who would at one time have had a successful legal career hidden away in a back-room with a drafting pen are now forced to compete for jobs with those having perhaps more client-facing attributes.
In the United States there has long been a movement towards a requirement for vocational practical training and testing – as evidenced by the Multistate Professional Responsibility exam. In Australia, there is the Practical Legal Training (PLT) programme. In England and Wales qualification as a solicitor now depends upon successfully completing the Professional Skills Course (PSC), covering knowledge of financial and business matters, advocacy and communication skills as well as client care and professional standards.
But the significance for legal education does not lie in the fact that this training is being given, such that law faculties should necessarily aim to seek a competing role as providers, but that it shows that those whom the law firms hold responsible for setting standards for entry into the professions i.e., local bars or law societies, evidently consider them important characteristics for legal professionals to have in the modern age.
Why is it Important that such Skills should be Developed prior to Employment?
Representatives of some of the larger law firms who have addressed students here at CUHK Law have focused very much upon the requirement for applicants to be able to demonstrate good ‘on-the-job’ personal skills such as problem-solving, commerciality and awareness of key aspects of business and finance, arguing that these are often relevant not just to those likely, in their future career, to be engaged in transactional, corporate, commercial and finance work, but also to those proposing to practice in areas such as insolvency, property, white collar crime, matrimonial law and other private client areas such as drafting of wills and probate.
As I mentioned at the conference, one firm that did a presentation here on its recruitment criteria featured these skills very prominently in its presentation and, as I pointed out to the presenter at the time, to the extent that legal ability itself had been inadvertently omitted from the list of required attributes!
There is, however, a difference of opinion over the extent to which aspects of vocational training, including professionalism, should be taught in academic institutions. It can be argued that, since knowledge of professional standards and aptitude in non-legal vocational skills are often tested late in the long process of qualifying as a lawyer, then the appropriate teaching can be left until the training period or at some other stage prior to admission as a qualified lawyer, depending on local professional rules.
However, as noted above, many law firms, to some extent or another, tend to recruit those who are able to demonstrate that they have, or will quickly have the ability to acquire, the professional skills necessary for the eventual job as a lawyer – these days often tagged as ‘employability’. With the larger firms at least, a surprising amount of time and money goes in to the recruitment and training process prior to qualification.
It follows that firms will not want to waste time and expense on taking into recruitment-related internships, let alone training contract or equivalent periods, those whom they fear may not have, or may not quickly acquire, these skills. Suitability will therefore usually be tested first by reference to the CV and any required application form, next at the interview prior to an offer of internship and then, finally, if these hurdles are overcome, during the internship itself. But the first of these hurdles, the CV and any accompanying application and interview, take place during the degree course and in many places, typically, as in Hong Kong, during the penultimate degree year.
One of the speakers at the conference pointed out that research in England and Wales showed that there were a substantial number of law students who did not enter the legal profession there. But this does not detract from the argument about the desirability of early training - most law students will need vocational training for job applications and knowledge of these skills will also be relevant to many others taking law degrees, including those intending to teach law who may well have a ‘mentoring’ responsibility as part of their role.
What is the Position in Hong Kong?
Here at CUHK Law, most of our students start in legal practice where professional standards apply, as illustrated by the following chart:
But there are additional cultural challenges facing students from South East Asia, including Hong Kong, which I believe argues more strongly for early stage professional training. It is sometimes commented that strong family and social structures in Hong Kong have traditionally reduced opportunities for students to face up to real challenges in their everyday lives. One also sometimes hears the criticism that the ‘spoon-feeding’ style adopted in primary and secondary education does not encourage a challenging and questioning approach that tends to build the necessary levels of self-confidence.
Yet Hong Kong lawyers themselves, in the case of the larger firms at least, compete for clients in a global market place where there is increasing emphasis on client interface and a manifestation of ‘professional’ skills, as already mentioned.
Applicants for legal jobs in all but the smallest law firms therefore face the possibility, and with the larger firms the near certainty, of being tested with professionalism-related questions at the time of application, as well as in interview assessments, taking place more than a year before sitting their final degree exam and more than two years before completing their professional legal qualification programme training (in Hong Kong the Postgraduate Certificate in Laws (PCLL)).
Looking specifically at Hong Kong, currently the teaching of aspects of professionalism forms only a small part of the required training. Reporting in April 2018, the government’s Standing Committee on Legal Education and Training recognised this issue and included in its recommendations that:
‘4.2 …Consideration should also be given to how within the compulsory curriculum…law degrees can better prepare students to understand and engage with law and legal practice.
4.3 That principles of legal ethics and professionalism are introduced at the academic stage…’
From some of its comments, the Hong Kong Law Society is also believed to favour a greater focus upon vocational training at the academic stage. However, as yet, no mandatory changes in the required curriculum have been made.
The Professionalism Research Project
Currently at CUHK LAW, certain aspects of professionalism do fall within the ambit of teaching. More detailed training is also offered as part of our Careers Office support package for CV and job interview preparation, pre-internship training, and alumni sharing and mentoring. But not all students attend the seminars or take advantage of the offered services, even though this puts them at a disadvantage in job-related applications and interviews. And, in my experience, it is often those who need it most who shy away from using them.
In order to assess the strength of the case for more extensive and earlier professional training for law students, and using Hong Kong as a case study, I have concluded that research needs to be conducted, including amongst those who engage with or employ such students, seeking to draw conclusions as to whether or not what is currently provided by way of professional training and career support as part of the academic curriculum meets the demand and, if not, what recommendations can be made to address the issue. Such a project is therefore shortly to be undertaken in conjunction with my academic colleague, Michael Lower.
The methodology to be adopted will be to generate ideas and structure from prior conference sessions, of which Directions in Legal Education conference has already formed a part, researching literature for theoretical context, sourcing data from interviews with students, alumni, law firms and other employers over a timescale of 18 months with a focus upon Hong Kong.
The data and research results obtained will then be set out, showing the results of the case study and seeking to draw conclusions on lessons to be learned for the law faculties generally from the research undertaken.
Conclusion
At the conference I concluded with the following remarks:
(1) employability in the business of law is the key objective of the vast majority of law students;
(2) professionalism is an essential aspect of employability;
(3) this has become an even more important element in an age of technological advance;
(4) this is supported by developments in US, Australia England and Wales and elsewhere;
(5) it is tested by many law firms prior to completion of the degree;
(6) preparing students for professional life should therefore in my opinion be a principal objective of legal education.
It remains to add that by means of the project to be undertaken with Michael Lower I propose to assess whether or not, using Hong Kong as a case study, there is, as I currently believe, an argument for including at least elements of professionalism within the academic curriculum at the stage when students will be applying for internships a step that, for many, will be a key stage in the pursuit of a professional legal career.