SQE is exactly what the US legal services sector badly needs

The US legal profession needs an independent regulatory body like the Solicitors Regulation Authority to oversee it. If you think the legal industry is in disarray in England and Wales, it’s far worse in the US where 50 states create a patchwork of anachronistic, balkanised regulation designed to frustrate competition and innovation. It is a classic example of protectionism and self-regulation run amuck.

The American Bar Association – the US counterpart to the Law Society – has thrice declined to adopt some form of alternative business structure ownership during the new millennium, bowing to pressure from state bars that vigorously opposed it. The same opposition to material change in legal education – even more outdated and expensive in the US than in the UK – has institutionalised stasis.

Focus on the public

Although the SRA may not be a panacea, it is certainly putting the focus of the legal industry where it belongs: on the public. And by re-regulating legal education via the solicitors qualification examination, it is serving the public interest – and prospective solicitors – by ensuring licensees are ‘practice ready,’ competent, and (somewhat) experienced from the get-go. It is also reducing the cost of legal education and promoting diversity at a time when the rule of law is under siege in democracies around the globe. As well, it is elevating competency over pedigree, enabling clients to assess candidates by objective standards.

The traditional law firm and legal education models on both sides of the Atlantic are broken and in need of re-regulation. The UK is taking active measures to fix them; the US is not. Thanks should be offered to Sir David Clementi and his remarkably insightful, candid report on the industry’s failings here that led to enactment of the Legal Services Act of 2007 and the creation of the SRA as an independent regulatory body – a counterweight to the Law Society. And that is why ABSs and SQE have been designed to serve the public interest. The legal guild had a long run, but it’s time for a reboot. That’s what the SQE seeks to do. Among other things, it might just ameliorate the access to justice crisis that threatens the rule of law.

But let’s get more specific about SQE. Legal practice and legal delivery were once synonymous. Lawyers delivered legal expertise. Period. Now, legal delivery is a three-legged stool comprised of legal, technological, and process/project expertise. ‘Just being a lawyer’ is insufficient for solicitors to succeed today and to serve clients. Not only does SQE test competency rather than courses – while assuring doctrinal knowledge that can be obtained outside classrooms – it also emphasises experience. Put another way, it is implicitly prodding traditional institutions to update their curricula and to lower costs. It is also providing a path for students with different backgrounds and experiences to enter the law. This will benefit clients, the public, and the profession. And by creating a path to licensure for candidates with backgrounds and skills different to traditional candidates, the public and the profession will be better served.

Strong regulator

A strong, independent regulatory body like the SRA with guts and teeth is sorely needed in the US. So too is re-regulation of firms (allowing some form of ABS) and legal education (a variation of SQE). It’s no coincidence that the entrenched stakeholders of each – partners and tenured law faculty – oppose change and frustrate innovation state side. Meanwhile, clients are migrating from law firms to other providers. And law school enrolment continues to decline even as its cost has increased approximately 400 per cent and its graduates are ill-prepared for a marketplace that demands practice-ready, market-ready (read: skills beyond legal expertise) products. Clients are voting with their feet – the marketplace is effecting its own changes.

US law schools – excepting a handful of elite, brand-differentiated ones – are failing. Oh, and let’s not forget the six-figure average law school debt students carry. Many of the ‘best and the brightest’ candidates once drawn to law are seeking other careers, notably in business, finance, and technology. These sectors may one day co-opt legal delivery in much the same way as they have taken over healthcare.

No doubt SQE will require tweaking and careful monitoring. But it is clearly a step in the right direction and a beacon of hope to those across the pond who decry the failure of US legal education to serve its customers: students and the society. For whatever miscues the SRA may make, it is clearly bringing the legal industry into the 21st century, serving the public, and helping to restore confidence in the profession at a time when it is sorely needed.

Mark A. Cohen is founder and CEO of Legal Mosaic

@legalmosaic

legalmosaic.com