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The finished article?

Cover Story

Cite as: (2004) 78(3) LIJ, p. 18

The state government is reviewing Victoria's system of training for law graduates. While the legal profession is willing to embrace some change it is also determined to see the retention of articles.

By Jason Silverii

Law graduates would have to complete up to two years of practical work before being able to apply for a full practising certificate under plans by the Law Institute to reform the state’s admissions process.

The Institute Council approved a policy on 29 January that would see graduates who have completed their articles year placed on a restricted practising certificate for an additional 12 months.

Those graduates who have completed a practical legal training (PLT) course instead of articles would be placed on a restricted practising certificate for the first two years of their career.

(A restricted practising certificate prevents its holder from practising on their own or handling trust money.)

Under the current dual system, law graduates have two ways of gaining admission as a barrister and solicitor.

The first is by completing one year as an articled clerk at a law firm. Once that year has been successfully completed, the newly admitted practitioner can apply for a full practising certificate.

The second is by completing a minimum six-month PLT course. Once admitted, a PLT graduate must complete six months on a restricted practising certificate before being able to apply for a full practising certificate.

The Council policy will form the basis of the Institute’s response to state Attorney-General Rob Hulls’ review launched in November last year into articles of clerkship and PLT courses.

The review places firmly under the microscope Victoria’s dual system of attaining admission to practice.

One option to be canvassed is the possible abolition of articles – a central tenet of Victoria’s training of lawyers for more than a century.

According to Institute CEO John Cain, the legal profession has made it clear that articles needs to stay.

“The feedback we get from the profession is that articles is highly regarded and well thought of and there is a strong desire to retain some form of articles for admission to practice.”

This stance is supported by shadow state Attorney-General Andrew McIntosh, who said any reform or restructure of the admissions process should retain the articled clerk system.

So why is the current form of articles under possible review despite wide support from the legal profession?

Mr Cain said the impetus for the review came from two main factors: the National Profession Project and the desire for consistency across Australia in graduate admission requirements.

“That means that Victoria’s system is going to be compared with the systems in other states and we need to make sure ours is at least compatible with other states.

“The second driver is that we have a situation where there is a significant shortage of places for articled clerks. Previously, articles has been able to absorb not all, but a significant number of, graduates coming out of university.”

At the end of 2003, about 1000 students graduated from law schools in Victoria.

However, in 2004 about 1500 students will begin law courses in five law schools around the state. That means that by the time they graduate in 2008 the number of law graduates in Victoria could be well over the current level.

These graduates are fighting over a number of articles of clerkship that has, according to the Board of Examiners for Legal Practitioners, plateaued over the past few years.

In 2000, Victorian firms offered 655 articles positions. That dropped significantly to 617 in 2002 and rose slightly in 2003 to 622.

During the same time, the only providers of PLT courses in the state – the Leo Cussen Institute and Monash University – have had the capacity to take on 260 graduates.

On the surface, this would leave about 120 law graduates without articles or a PLT placement.

Mr Cain believes that the current system would come under tremendous strain in 2008.

“It appears at the moment that the numbers of graduates coming from the universities could be taken up by the PLT providers.

“The trend in the number of graduates is increasing and it is likely that those current courses will be inadequate in meeting those needs. Therefore we need to give the maximum flexibility for other [PLT] providers to come into the market.”

This has been reflected in the Institute’s new admissions policy. The policy calls on the Council of Legal Education, which accredits and monitors legal education courses in Victoria, to be given broad authority to accredit more PLT courses by third-party providers and courses offered by law firms in conjunction with third party providers.

However, current PLT providers do not see a crisis looming. They believe the raw data about graduate numbers and available articles and PLT positions does not tell the whole story.

Director of practical training at Leo Cussen Institute David Were said the figures suggesting a crisis later this decade have been “overstated”.

“I’ve read all the figures, but there are two factors that are not always mentioned.

“The first is that the number of law students starting is not the same as the number of law students finishing. It’s always been the case.

“Secondly, a number of them will decide as they go through that they don’t want to practise law and will use their law degree to go into something else. More and more people are doing combined degrees, which gives them more options.

“Yes, the number of law students is increasing. It doesn’t necessarily mean a crisis and certainly not in the next couple of years.”

He points to the fact that for the past three years Leo Cussen has not turned away any graduate wanting to do its PLT course, although he expects a handful will miss out this year.

On top of this, Leo Cussen Institute will unveil its new online PLT course in the next few months.

The first intake of 25 graduates will be part of a pilot program to test the system. If the system is successful, the online system will have the capacity to take on a much greater number of graduates.

There is also excess capacity in Monash University’s Graduate Diploma in Legal Practice, Skills and Ethics.

Monash University’s professor of legal practice Susan Campbell said the course has not filled its capacity of twice-a-year intakes of 60 graduates each since beginning in mid-2000.

Professor Campbell said the highest intake they have had was 40, which she said showed there was no crisis as yet in admission opportunities.

These figures would suggest that the combination of articles and PLT courses – including Leo Cussen’s online facility – would have the capacity to deal with a higher number of graduates looking to be admitted than is currently the case.

However, this does not mean that the review into the system is unnecessary.

While there is support within the legal profession for articles, there is also concern that it is far from a perfect system.

Immediate past president of the Institute’s Young Lawyers’ Section Anna Stewart dealt extensively last year with flaws in the articles system.

“The difficulty we see, apart from how difficult it can be to get articles, which is essentially driven by the market, is the inconsistency in the experience that people have.

“Most people do have a good time – and I certainly enjoyed my articles – but I think that it can very much depend on the partner that you are articled to.”

The Law Institute receives about 20 calls each year from articled clerks concerned about their treatment by principals or firms.

The complaints range from lack of supervision and training, and inaccessible principals through to verbal abuse and harassment.

The number and range of complaints led the Young Lawyers’ Section to publish the Guidelines for Articled Clerks and Principals last year. It outlines the parameters of the relationship between principals and articled clerks, although neither party is bound by them.

The Board of Examiners for Legal Practitioners, which is responsible for admissions to practice, also monitors the progress of articled clerks.

The Board’s secretary Lindsay Collins said in the three months he had been chair the Board had not received any official complaints from articled clerks, although there was anecdotal evidence of clerks dissatisfied with their principal or firm.

Mr Collins said, however, there had been a handful of official complaints over that time from principals regarding the performance of their articled clerks.

He said the standard of articles, especially among large firms, had improved in recent times.

“Larger firms, of course, with their resources are capable of rotating clerks through different departments, having set courses, having lunchtime seminars, courses of instruction in-house.

“All of these can be very impressive and can be of immeasurable value in developing an articled clerk’s expertise.”

Allens Arthur Robinson (AAR) takes on about 30 articled clerks a year in Victoria.

The firm combines the traditional articles structure with an education program developed internally and delivered by the firm’s senior lawyers and partners, as well as external specialists such as consultants and barristers.

Articled clerks attend classes once a week as well as doing their legal work in the office.

AAR staff partner Maryjane Crabtree said the days of wasting the talents of eager articled clerks were over.

“I think the one year of photocopying is in the dim, dark ages when I did my articles and you were the most lowly paid person at the firm. The mail clerks got more than you.

“These guys would be completely wasted on that, so we don’t waste our resources by doing that. We try very hard to give them the broadest experience we can.”

Being a national firm, AAR must deal with the frustration of tailoring its training program to suit each state’s admission requirements. (See breakout box for the requirements of each state and territory.)

Ms Crabtree said Victoria was the only state where the firm did not send its clerks to some form of PLT course. She said the firm had its Victorian system under review.

“We wouldn’t want to do it on the basis of using an interstate PLT program and then adopting mutual recognition.

“But we’d certainly be quite [open] to the opportunity to have a Victorian-approved internal PLT program down here, which we would run very consistently with the NSW program.”

Under the Institute’s policy, such an outcome would be possible.

Ms Crabtree said the Victorian system produced very good candidates for clerkship, but was “resource hungry” because of the time given by partners to find and assess those candidates.

“It must be very hard for medium-sized law firms and small law firms to predict how to make their offers and who to make their offers to.

“Of course, everyone applies to the big firms and the big firms probably get the first cut at the best students.

“How difficult that makes it for the others, I’m not sure.”

Medium-sized firm Arnold Bloch Leibler (ABL) has taken on 11 articled clerks in 2004 and has engaged 11 for 2005.

ABL partner and head of the committee of partners for the recruitment of articled clerks Joey Borensztajn said the system was costly only if the clerks left soon after admission.

He said it was the aim of the firm to turn all its articled clerks into partners. Like AAR, ABL combines a training program with on-the-job experience.

“I think some people are concerned about the inconsistency of the articles being provided and that happens within the same firm, depending on which department you are working for, and across different firms.

“From our perspective, we are certainly in favour of some method of managing that quality and standard of the articles being provided.”

While the Institute’s new admissions policy does not directly tackle the standards of training of law graduates, it does stem from a desire for the system to produce better lawyers.

Mr Cain said having articled clerks and PLT graduates spend more time on a restricted practising certificate and under the supervision of a practitioner of at least five years’ experience as proposed would give users of legal services greater confidence in the ability of their lawyer.

“The risk in the current system is that a person who has not had the best experience in articles can, having completed articles and perhaps with limited experience, hang their shingle up and start their own practice.

“This measure is an added safeguard.”

It is a stance supported by many within the legal profession.

Mr Collins, of the Board of Examiners for Legal Practitioners, said the policy was consistent with his experience with young lawyers.

“It is consistent with my experience that articled clerks certainly develop in a more rounded and positive sense in their second career year rather than their first.

“They are inevitably a little bit at sea in their first year. But in their second year, that is their first year of admission, they can blossom quite dramatically.

“Their confidence in the processes they have been exposed to is much greater and their capacities and efficiencies are much greater.”

Despite concerns over aspects of articles, the consensus within the legal profession is that good articles is better than good PLT.

One major reason is the cost element.

While articled clerks receive a salary while doing their training, graduates doing PLT have to pay up to $4750 up-front to do the course. This comes on top of massive Higher Education Contribution Scheme (HECS) debts incurred during their law degree, which can top $50,000.

Ms Stewart said the potentially prohibitive cost of PLT courses could have an impact in the future on the make-up of the legal profession.

“We are supportive of PLT, but we want to make it affordable because the last thing we want to see is that only people from wealthy backgrounds can get into it.”

Mr Cain said the Institute’s policy of allowing more PLT providers into Victoria would give the system greater flexibility to take in more graduates. This extra supply could lead to lower prices for PLT courses.

Another reason for many graduates preferring articles over PLT is the articled clerk’s involvement in real rather than simulated situations.

However, Professor Campbell issues a warning about the differences between articles and PLT.

“I have told my students that good articles is better than PLT, but PLT is better than bad articles.

“The problem is knowing what type of articles you are going to get and that comes back to quality controls.”

Until Mr Hulls’ review is completed – no timeline had been placed on its completion at the time of writing – many of this year’s articled clerks will begin their training this month under a system that may see significant change for the first time in decades.

Jason Silverii

Admissions and articles – the numbers

Year

Articles

Admissions



(including from overseas)

1997

451

580

1998

554

652

1999

577

704

2000

655

734

2001

643

815

2002

617

824

2003

622

817

Source: The Board Of Examiners For Legal Practitioners

Admissions around Australia

Australian Capital Territory
Graduates seeking admission to practice in the Australian Capital Territory need only a bachelor of law degree from an accredited university. The ACT Supreme Court governs admissions.

New South Wales
Law graduates must successfully complete a PLT course, which includes a 16-week “practical experience” component that is designed to provide the graduate with experience of working in a legal firm.

Queensland
To practise as a solicitor in Queensland, graduates must either complete a two-year articled clerkship, a PLT program as a judge’s associate or a combination of the two.

South Australia
To practise in South Australia, a law graduate must complete a PLT course.

Tasmania
For admission to practice in Tasmania, law graduates must obtain practical legal training.

Victoria
In Victoria, law graduates must either complete a year as an articled clerk or complete a PLT course to gain admission.

Western Australia
To gain admission in Western Australia, law graduates must complete a year as an articled clerk.

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