Old dogs, new tricks

How should future solicitors and barristers be assessed for their understanding and embodiment of the ethical values and duties that lie at the heart of their practice?

This question has been the subject of debate and change on the part of regulators and is, on any view, an important one. The vocational stage of training may be the first time many students have come across a code of conduct that will govern their professional practice. Students are learning about the responsibilities inherent in upholding the administration of justice and the rule of law. 

In March 2020, Julie Brannan, director of education and training at the Solicitors Regulation Authority (SRA), stated: “We need to make sure that qualifying solicitors understand the high ethical standards expected of them and what that means in practice. This is fundamental to public trust in the profession.”

To achieve this, the SRA has confirmed that “ethical questions will pervade both SQE1 and SQE2. They will not be flagged as ethical questions... This better mirrors what happens in practice - knotty issues are not signaled with an ethics klaxon.”

Under the new SRA regime, all future solicitors will need to complete two years of qualifying work experience (QWE), where the SRA “expects them to learn about practical ethical issues in the work of a solicitor”. The solicitor signing off successful completion of QWE must declare to the SRA that nothing ethical arose which raises any question about the candidate’s suitability to be a solicitor.

In bringing in these sweeping changes, the SRA has stated: “Ethics is such an important area that we need to be sure we assess it appropriately. So we will be keeping our approach under close review.”

For trainee barristers, from September 2020 the assessment of professional ethics will be split between the vocational component of training and the pupillage/work-based learning component. Providers of the vocational component will assess professional ethics as part of the new Bar course, sufficient to meet the foundation level requirements of the call to the Bar. 

The Bar Standards Board (BSB) will then assess professional ethics by an open book, centralised exam comprising six short answer questions (SAQ) taken during work-based learning, to the threshold standard required of barristers on day one of practice. 

The BSB recently published a detailed discussion of the reasoning for this strategy. The BSB’s Future Bar Training strategy provides that the assessment of ethics during the vocational stage can be embedded within other subjects, but a discrete element of assessment must also be provided. If an oral form of assessment is used, it must be supplemented by a discrete written element. The assessment must be closed book.

What does this mean for providers of the new Bar course? Providers might view this change as a return to the good old days of provider-set assessments, but we could also seize the opportunity to innovate in a genuine attempt to teach and reach the parts that other forms of teaching and assessment cannot reach.

These parts include the knowledge-practice gap that arises where the focus of assessment is on the production of knowledge, rather than on students grasping responsible ethical practices in a felt way. There is an opportunity here to develop teaching and learning that provides opportunities for genuine reflection and discussion. 

But what would this look like on the ground? In their recent book, Critical Perspectives on the Scholarship of Assessment and Learning in Law, Alison Bone and Paul Maharg offer some fascinating insight into this subject.

In one model, as proposed by the SRA for SQE1 and SQE2, students learn ethics in the context of their examinable subjects, as they have historically. The danger here is that students treat ethical problems as a treasure hunt; and the reward of finding them is the opportunity to recite the learnt references to the applicable code of conduct, with better students applying the facts of the problem to the relevant parts of the code. 

Another model is teaching and assessing ethics discretely in the form of self-standing multiple-choice questions and/or short answer questions. Under its new strategy, the BSB is proposing an open book SAQ examination for its work-based learning assessment, stating that the SAQ format “will allow pupils to demonstrate their application of knowledge. Therefore, the assessment will be open book to allow access to core materials; this, rather than a closed book assessment, better reflects the real-life environment in which ethical questions are dealt with in practice”.

This statement recognises the risk of the existing closed book model; that students are learning and applying rules with no meaningful opportunity for contextualisation, reflection or deep learning. 

Education providers may make noble efforts to supplement these models with practitioner talks, mentoring activities and the like, but these are unlikely to embed the level of understanding of ethical values and behaviours the legal profession aspires to in its practitioners. 

The prospect of moving away from this model of teaching and learning, to one where learning and assessing can take place in a genuinely authentic client or court setting, is potentially appealing for students and teachers alike – not to mention the profession. 

How might providers deliver on the promise of an authentic setting? Clinical legal education immediately springs to mind, especially where students have the opportunity to provide free legal advice to members of the public. The problem with this framework is that client behaviours and problems are unpredictable and may not throw up useful ethical problems. Providers cannot regulate the range of problems students have to deal with. 

Simulated practice and client settings in the form of objective structured professional assessment, which give students the opportunity to practice and receive tutor feedback, offer a valuable alternative. 

Objective structured professional assessment is a form of assessment designed to measure components of performance that traditional cognitive testing cannot measure. Many professions use the clinical form of this assessment, for example, medicine, nursing and psychology, which is called Objective Structured Clinical Examination (OSCE). 

Students move between stations dealing with a clinical task, some involving simulated patients, or physical data such as x-rays or photographs. Each station has a different examiner, each using an identical process of assessment. 

This model could be effectively adapted for law students. Students would be assessed in a range of simulated conditions combining the authentic simulation of live interactions, the standardisation of tasks and an opportunity in teaching and formative assessment for reflection. 

The Qualifying Lawyers Transfer Test (QLTS), the route for lawyers from other recognised jurisdictions and barristers from England and Wales to qualify as solicitors, uses this method of assessment. QLTS School states that there is no “comparative or analogous assessment and it requires a totally different approach and mind set because it focuses on the more nuanced areas of law and practical skills”. 

Recent studies suggest that this form of assessment exposes the cognitive poverty of much conventional law school assessment and makes prominent the ethics of the client encounter. 

There is another opportunity to seize here. The potential to use digital simulations to create the ‘realia’ of an authentic, simulated transaction is exciting. These simulations could be used for formative and summative assessment; they are highly flexible; reduce the need for the intense staff numbers 
required for the medical school OSCEs, and therefore the cost; and are accessible to all students. 

There may also be an opportunity to embrace artificial intelligence at the cutting edge of higher education in this form of assessment. The future for teaching law students holds possibilities for laying a strong ethical foundation in readiness for practice.  

Katie Jukes is a senior lecturer at Manchester Metropolitan University Law School mmu.ac.uk