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Supervised training

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Cite as: (2008) 82(12) LIJ, p.74

Once a candidate has completed the academic requirements for admission they are required to complete practical training to be eligible for admission. The Legal Practice (Admission) Rules 1999 provided for two alternatives for completing practical training:

  • articles; or
  • an approved practical legal training (PLT) course.

The Legal Profession (Admission) Rules 2008 (Rules) commenced on 1 July and left the requirements concerning PLT courses substantially unchanged but replaced articles with supervised workplace training (SWT).

What is SWT?

SWT is a 12-month period of supervised training under an eligible supervisor during which the trainee must acquire an appropriate understanding of and competence in a number of practice areas.

These training requirements are set out in Schedule 3 of the Rules, which prescribes some 220 performance criteria.

Most of these competencies can be completed through either internal or external training, the exceptions being ethics and professional responsibility, which must be completed through an approved PLT provider, and lawyers’ skills together with the risk management element of work management and business skills, which must be completed through an approved PLT provider or another provider approved by the Board.

Supervision

The Rules replace the term “principal” with “supervisor”.

It is the intention of the Rules that supervisors and trainees have a closer relationship of supervision than sometimes existed between principals and articled clerks. The supervisor is required to actually supervise.

Rule 3.05(7) states: “A person nominated in a training plan or authorised under sub-r(4)(b) or (c) to supervise a trainee for any period during supervised workplace training must be the person who is primarily responsible for supervising the work of the trainee for the purposes of these Rules, during that period”.

This is reinforced through the provision of a more expansive range of persons eligible to be supervisors than were previously eligible to be principals and the restriction placed on supervisors to have no more than one trainee at a given time without Board approval.

In the case of a private firm, a partner who could previously have two articled clerks can now only supervise one trainee, but a senior associate with five years experience, previously ineligible to be a principal, will be an eligible supervisor for SWT.

The Rules, therefore, encourage firms to “spread” supervision across a greater number of solicitors, which perhaps more accurately reflects the practical realities of supervision of graduate recruits than the articles scheme.

Barristers, along with government, corporate, commercial and community legal officers with the requisite experience are eligible to be supervisors: r5.05.

The Board requires all supervisors to file an affidavit setting out their eligibility under r3.05 to enable the Board to satisfy itself that the supervisor is eligible. The Board has prepared Practice Direction 4 to provide guidance to applicants in relation to this requirement. Practice Direction 3 has been prepared to provide guidance to supervisors seeking Board approval to supervise more than one trainee at the same time.

The Rules make a distinction between an “employer” and a “supervisor”. The Schedule 6 affidavit is to be sworn by the “employer” while a Schedule 7 affidavit is to be sworn by each supervisor. “Employer” is not defined in the Rules. In many cases the employer and supervisor will be the same person.

Multiple supervisors

Rule 3.05(4) provides for training to take place under the successive supervision of more than one supervisor. Where a trainee is seconded to a different firm for the purpose of fulfilling a training area, there would need to be a separate supervisor for the period of the secondment and this should be set out in the training plan. Where a trainee rotates through a number of sections within the one firm, it will generally be acceptable for one supervisor to continue supervision throughout these rotations.

“Appropriate competence and understanding”

Rule 3.09(1) states that a “trainee must ... acquire an appropriate understanding of, and competence in each element of” the competencies.

Evidence of fulfilment of this requirement is provided for in r5.02 which requires the applicant to lodge a Schedule 6 affidavit executed by the applicant’s employer and a Schedule 7 affidavit executed by each supervisor.

Both Schedule 6 and 7 affidavits require the deponent to swear that: “To the best of my knowledge, information and belief, the applicant has acquired and demonstrated an appropriate understanding of and competence in the following ... areas ... ”.

Schedule 3 sets out a detailed and prescriptive list of performance criteria which make up the competency areas. Some practitioners have informed the Board that they are concerned about how they will make an assessment of the trainee’s knowledge and competence in relation to such broad criteria, which would enable them to depose in the terms required.

Regarding a supervisor’s assessment of a trainee’s competence and understanding, the Board has provided the following guidance:

1. that the appropriate standard of competence should be that of an entry level lawyer;

2. a file must be maintained which records the trainee’s completion of each performance criteria. Information in that file should contain the date the task was completed, a description of the task and a reference to the client file which enables verification of the trainee’s work. The supervisor should sight and sign off that record on a weekly basis. At the conclusion of the traineeship, the supervisor should check off the entries in the file against the required competencies to ensure that all performance criteria have been completed. The Board will be content for the supervisor to rely on this process for the purpose of swearing the Schedule 6 and 7 affidavits. Practitioners are advised that the Board may conduct random audits to satisfy itself that the required records have been maintained;

3. that satisfactory completion of performance criteria in the course of the trainee’s file work is sufficient to demonstrate “appropriate competence in and knowledge of” that criteria;

4. appropriate competence in performance criteria which are not completed by the trainee through client file work may be achieved through direct instruction by the supervisor or other suitably experienced person. A record of this instruction must be entered in the file record and the supervisor must be satisfied that the trainee has adequately understood the instruction;

5. wherever possible, a trainee should demonstrate competence in performance criteria through completion of client file work;

6. formal assessment of internal training is not required; and

7. where a trainee has attended training provided by an external training provider, a document certifying the trainee’s satisfactory completion of the training module should be retained.

The training plan

The training plan replaces what was the articles agreement and is contained in Schedule 15 of the Rules. This document must be filed within 28 days of commencement of the traineeship and sets out how the training requirements are to be fulfilled. Where the training actually provided diverges from that contained in the training plan, the details of this divergence must be set out in the Schedule 6 and 7 affidavits filed at the conclusion of the traineeship.

Applications under r3.09(1)(d)(iv)

Applications under r3.09(1)(d)(iv) for Board approval to teach lawyers’ skills and risk management should be in affidavit form and contain a documented and structured training course covering each relevant performance criteria.

New admission requirements

It should be noted that all applicants for admission are now required to provide an up-to-date police check and statements from their law school and, if relevant, their PLT course, concerning academic misconduct.

All forms and practice directions referred to in this article can be found on the Board of Examiners’ website – http://www.lawadmissions.vic.gov.au.

Plan for the future

The LIV has created an online training plan to help firms manage their training obligations.

LIV CEO Mike Brett Young said the training plan was highly interactive and helped supervisors work through all the elements involved.

“The LIV has provided the training plan and other information on its website to aid lawyers through the transition to supervised workplace training,” he said.

“As a membership-based organisation, we want to ensure our members are as informed as possible.”

Each training plan must set out:

  • the period of supervised workplace training;
  • an explanation as to how the parties propose to ensure that the trainee acquires and demonstrates appropriate understanding and competence in each of the skills in Schedule 3;
  • identification of who will supervise the trainee (it is suggested that where necessary the job title of the supervisor be provided rather than the formal name in the event that the person described changes roles within the 12 months – i.e. practice manager rather than John Doe);
  • the name of any approved practical legal training provider or other provider approved by the Board of Examiners who will conduct any course of instruction or assessment and the relevant skill, value or practice area of training they will provide; and
  • an undertaking as provided by r3.12(1)(e). 

The online training plan, which can be accessed from http://www.careers.liv.asn.au/content.asp?contentid=92, can be completed and printed in preparation for submission to the Board of Examiners. In addition, it acts as an electronic record which can be accessed and amended at any time.

The LIV has produced a hypothetical training plan to assist any firms which have trainees commencing in the first few months of the new system. The training plan is a guide only; however, the LIV is willing to assist anyone to prepare their training plans in the initial stages of the new system.  Visit the LIV Careers in Law website. http://www.careers.liv.asn.au/downloads/Training%20Plan.pdf

Firms may also contact the LIV’s Young Lawyers’ Section for guidance on ph 9607 9370.

RICHARD BESLEY is the CEO of the Council of Legal Education and the Board of Examiners. The Council establishes the requirements for admission and the Board determines the eligibility of applicants under the Legal Profession (Admission) Rules 2008.

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