Progressive legal education for candidate legal practitioners: What role should universities play?

June 1st, 2023
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This article discusses the role of both law teachers and legal practitioners in the provision of legal education in South Africa (SA). Legal education has narrowly been viewed through the lens of preparing law students for the practice of law without seriously and holistically engaging about what is required for the modern practice of law. This has led to an unfortunate and largely unhelpful debate regarding the perceived lack of quality in the current LLB, which is seen as producing students who are ill-equipped to practice law. While there is a need to debate and constantly seek to improve the content of the LLB, there appears to be a general dishonesty regarding the collective role of both law teachers and legal practitioners in the broader provision of legal education.

By simply assessing the pattern of candidates that they receive either within law firms or different Bars, legal practitioners have concluded, without a thorough assessment of the curriculum and the way law is taught, that the LLB fails to produce competent candidate legal practitioners. This raises a fundamental and unnecessary tension between vocational training and academic training. This tension leads to a question, ‘[s]hould the university law school train lawyers for practice or pursue a broader, academic legal education?’ (Franny Rabkin ‘Quality law graduates preferred to large numbers of ill-equipped graduates’ (www.ru.ac.za, accessed 4-5-2023)).

While the LLB programme is not perfect and some of the criticisms levelled against it are totally warranted and necessitate progressive initiatives to be taken to constantly improve it, some of the criticisms are simply not helpful. At the LLB Summit held in 2013, most of the legal practitioners raised serious concerns regarding ‘the perception that the quality of law graduates was generally poor, and that they were ill-equipped to practise law in a professional environment’ (The State of the Provision of the Bachelor of Laws (LLB) Qualification in South Africa Report, 2018 at 4). This implies that law teachers develop, teach and design law programmes that fail to train students to be equipped for the practice law. Further that they fail to provide students with the required skills for the practice of law. What is missing in the debate is the nature of the required skills with which law students should be provided and whether universities during the period of legal studies are better placed to carry that task as opposed to law firms and constituent Bars during the vocational training period.

Generally, the LLB can introduce law students to skills such as –

  • reading with comprehension;
  • ability to analyse factual and legal material;
  • critical and nuanced thinking;
  • ability to conduct relevant and contextual research;
  • developing arguments and supporting them with authority;
  • writing with precision and clarity;
  • ability to adequately summarise facts and locate and apply the applicable law;
  • capacity to use the law to advance an argument;
  • computer and numerical literacy; and
  • ethical behaviour.

It is important to note that these skills are introduced within the confines of the actual subject matter that revolves around legal theory as part of an equally important academic training. However, this does not mean that law students should be taught more than a blind acceptance of legal principles derived from existing authority without placing the constitutional vision at the heart of legal education (see Dennis Davis ‘Legal transformation and legal education: Congruence or conflict?’ (2015) Acta Juridica 172 at 182).

The constitutional vision has broadened the consumption of law and diversified how law should be taught and practiced. As such, modern universities are no longer producing graduates solely for law firms and associate Bars. Currently, graduates are prepared to occupy spaces where legal advice is sought and provided. This is because the traditional legal profession cannot consume all the graduates that are produced by
universities. Some of the graduates find refuge in various governmental departments, legal departments of Chapter 9 institutions, municipal legal departments, and legal departments of various commercial institutions including specialised tribunals and commissions.

This means that universities are generally not equipped to provide specific skills that are tailor-made to guarantee success in any space of the legal fraternity. In other words, given the diversity of places that provide legal services generally and different law firms – in particular in SA – universities cannot provide law students with specific skills that they would need to succeed in these places. However, universities are better placed to provide important generic skills that would provide law students with the greatest opportunity of succeeding in all the spaces they will find themselves in. Most importantly, universities must impart relevant skills that law students would require to function effectively which ‘must be developed and modelled in teaching-learning activities’ (Geo Quinot and Lesley Greenbaum ‘The contours of a pedagogy of law in South Africa’ (2015) Stell LR 29 at 38).

Academic training provided by universities should place law students in a position to learn and acquire technical skills that should be taught by legal practitioners during their vocational training. Law graduates will find it relatively easy to receive vocational training from legal practitioners once they have received academic training from universities (see JBK Kaburise ‘The role of legal education in a changed South African society: an outsider’s reflections’ (1987) 20 CILSA 316 at 321).

There is a need for legal practitioners to improve the way in which they provide vocational training. Within their spaces, they need to have a programme that adequately introduces candidate legal practitioners to the practice of law from –

  • writing e-mails and letters;
  • drafting of pleadings, notices and affidavits;
  • corresponding with opposing lawyers;
  • complying with court directives;
  • preparation for trial and building cases;
  • briefing advocates and responding to attorneys;
  • receiving and managing clients;
  • service and filing of documents;
  • treatment and development of relationships with court officials;
  • ethical conduct; and
  • billing clients and the business of law.

Vocational training is usually compromised where –

  • candidate legal practitioners are not even provided an opportunity to provide first drafts of relevant legal documents;
  • they are reduced to messengers and copy machines experts;
  • they are denied the opportunity to present cases at magistrates’ courts, even in unopposed matters or postponements;
  • they are not provided with work that requires constant review and progress assessment by their principals; and
  • they are not provided regular feedback on their work.

Legal education does not commence and end at university level. The Legal Practice Council (LPC) through various voluntary associations and other institutions continuously provide legal education to legal practitioners and candidate legal practitioners. However, apart from trial advocacy, the legal education provided mirrors what universities are already providing with one person instructing or lecturing a group of people in a classroom. Usually, an instructor would prepare slides, which are going to be narrated to the audience. With respect, there is a need to seriously assess the kind of post-university legal education with a view to determining whether it is fit for purpose. In relation to candidate legal practitioners, there is a need to evaluate whether legal education that appears to prepare them for entry examinations is fit for purpose. This assessment should place legal practitioners at the centre of post-university legal education. This will be an opportunity for legal practitioners to examine whether the post-university legal education contributes meaningfully towards the transfer of critical technical and practical skills that are required by the modern lawyer. If this is not the case, then to influence the development of practical and progressive legal education programmes aimed at addressing the criticisms that are often unfairly levelled against universities.

One of the unfortunate criticisms is that universities have lowered standards and anyone who cannot be admitted to other programmes can easily be admitted into the LLB programme. This criticism fails to seriously consider the government’s push for higher matric pass rates and the number of matriculants that come out of matric who genuinely qualify to study law. In some circles, the calibre of the modern law teachers has also been questioned by some. While these criticisms are levelled in seemingly objective terms, they are generally clouded by racial undertones. It is a fact that with the advent of democracy, universities are now open to the majority of the population and funding has been made available for those from poor backgrounds to study law. Ultimately when they graduate, it is inevitable that some of them would consider academia as their trade. The insinuation that lecturers in yesteryears were generally good as opposed to those who are lecturing today is baseless and bigoted. It cannot be denied that the legal education system was previously designed to serve and accommodate a small minority that made up the majority of participants in the legal profession (see Lutho Dzedze ‘Time on their side? A review of the four-year LLB as a tool for the transformation of the legal profession’ (2017) 31 Speculum Juris 107 at 113).

The Legal Practice Act 28 of 2014 was promulgated to ‘provide a legislative framework for the transformation and restructuring of the legal profession into a profession which is broadly representative of the Republic’s demographics under a single regulatory body’ (preamble). At the centre of the desired transformation and restructuring of the legal profession is progressive legal education that would equip candidate legal practitioners with necessary skills to not only enter the profession but to also thrive in their trade. This will not be achieved through traditional legal education that requires candidate legal practitioners to merely attend law classes where they will be taught the substance of law without any effort on inculcating forensic and technical skills. Legal practitioners are duty bound to offer progressive legal education within their spaces with a view to adequately train candidate legal practitioners for the practice of law for modern times. Given the fact that not all legal practitioners have progressively advanced legal education, I propose that the LPC should invite legal practitioners to voluntarily make themselves available to conduct practical seminars on forensic, technical, and practical aspects of law and the business of law. These seminars can be held virtually once a week for a period of 40 weeks a year. They should be opened to be attended by all candidate legal practitioners and interested legal practitioners. This means that one legal practitioner would present only one seminar in a year. The first ten weeks can focus on the legal framework, regulations and rules that regulate legal practitioners. The remaining weeks should be on the holistic practice of law, including management of law firms, establishing a practice as an advocate, marketing, acquiring legal work while avoiding touting, accounting practices, ethical conduct, and collegiality.

Due to the current state of electricity in SA, these seminars should be recorded and made freely available on the LPC website. This initiative will capacitate candidate legal practitioners with the necessary skills that are required once they are admitted into the practice. Given the fact that most law firms do not retain their candidate attorneys and these candidates eventually resort to opening their own practices, to some extent, this initiative will mitigate the risks associated with candidates who are not adequately trained and not ready to manage their own practices. In conclusion, the training and development of future lawyers is not the sole prerogative of law teachers. Legal practitioners should also come to the party and do their part to advance continued and progressive legal education.

Clement Marumoagae LLB LLM Dip in Corporate Law (Wits) LLM (NWU) AIPSA Dip in Insolvency Law and Practice (UP) PhD (UCT) is an Associate Professor at the University of Witwatersrand and a legal practitioner at Marumoagae Attorneys in Johannesburg.

This article was first published in De Rebus in 2023 (June) DR 12.

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