212
Legal Education, Practice Skills, and
Pathways to Admission:
A Comparative Analysis of Singapore,
Hong Kong, and Australia
Andrew Godwin and Richard Wai-sang Wu
I. Introduction
It appears axiomatic that as legal practice becomes more globalized, so
too must legal education. One of the byproducts of the globalization of legal
practice, involving both an increase in cross-border activity and also changes in
the way the legal profession is structured and regulated,
1
is that law schools are
increasingly expected to prepare graduates for the challenges of global practice.
An important question that arises in this respect is the role law schools should
perform in preparing graduates for admission and, in particular, equipping
graduates with the practice skills that lawyers need to operate effectively in
a cross-border context. A substantial body of literature exists concerning the
globalization of legal education and the globalization of legal practice.
2
This
paper contributes to the discourse by examining the relationship between the
design of pathways to admission—namely, the processes by which graduates
qualify for admission to legal practice—and legal education, particularly the
incorporation of practice skills into the law school curriculum.
This paper examines three jurisdictions in Asia that share a common-law
heritage but adopt substantially different pathways to admission: Singapore,
Hong Kong, and Australia. All three jurisdictions share a requirement for
graduates to obtain practical training before they gain admission to practice.
1. Globalization also involves the increasing impact of technology on the legal profession.
For a discussion about the impact of IT on the practice of law, see RichaRd SuSSkind,
TomoRRow’S LawyeRS (2013).
2. See infra Part II.
Journal of Legal Education, Volume 66, Number 2 (Winter 2017)
Andrew Godwin is Associate Professor and Director of Transactional Law, Melbourne Law
School, The University of Melbourne. Richard Wai-sang Wu is Associate Professor at the
Faculty of Law, The University of Hong Kong. The authors are members of a research team that is
examining experiential learning and transactional law education with the full support of a Hong
Kong University Teaching Development Grant (Project No. 10100537) and a Melbourne Law
School research grant. The authors are grateful to Timothy Howse and Lachlan Sievert, Research
Associates at Melbourne Law School, for their research, and also to the anonymous reviewers for
their helpful comments.
213
Singapore is unique among the three jurisdictions in that its pathway to
admission involves a bar examination that follows a compulsory preparation
course. Hong Kong and Australia, by contrast, currently do not adopt a bar
examination and, instead, require completion of postgraduate professional
legal training as a prerequisite to admission. However, two important points
of difference exist between Hong Kong and Australia. First, enrollment in
Hong Kong’s postgraduate certificate in laws (PCLL), an intensive one year
full-time legal qualification program, is through competitive application. The
existence of caps at each of the three providers
3
means that not all graduates are
guaranteed of winning a place in the PCLL and, therefore, gaining admission
to practice. By comparison, enrollment in the practical legal training (PLT)
course in Australia is not capped and all law graduates are therefore able to
enroll in the course and gain admission to practice upon successful completion
of the course. The second point of difference is that graduates in Australia can
undertake supervised workplace training as an alternative to the PLT course
and gain admission to practice on that basis without the need to complete
a postgraduate professional training course. Interestingly, Hong Kong is
currently moving closer to the approach of Singapore with the announcement
by the Law Society of Hong Kong in January 2016 that a common entrance
examination will be introduced and will come into effect by 2021.
4
Critical questions in all jurisdictions are the role that law schools should
play in preparing graduates for admission and the extent to which practice
skills are expected to form part of the curriculum for the academic degree,
as distinct from the professional training course that follows graduation and
precedes admission. In this respect, the similarities are closer among the three
jurisdictions. Unlike the American Bar Association, which requires students
to complete at least six credit hours of experiential education,
5
all three
jurisdictions to date have avoided a prescriptive approach and have instead
given the law schools discretion to determine how practice skills should be
incorporated into the curriculum.
6
However, some interesting points of
3. The three providers are Hong Kong University, Chinese University of Hong Kong, and
City University of Hong Kong.
4. Common Entrance Examination,
Law SocieTy of hong kong (Jan. 6, 2016), http://www.
hklawsoc.org.hk/pub_e/news/press/20160106.asp [hereinafter Common Entrance Exam].
5.
am. BaR aSS’n, Standard 303: Curriculum, in STandaRdS and RuLeS of PRoceduRe foR aPPRovaL
of Law SchooLS 2015-2016 (2015) [hereinafter aBa STandaRdS], http://www.americanbar.
org/content/dam/aba/publications/misc/legal_education/Standards/2015_2016_
chapter_3.authcheckdam.pdf
6. See, e.g.,
PauL Redmond & chRiSToPheR RoPeR, comPiLaTion of RecommendaTionS, LegaL
educaTion and TRaining in hong kong: PReLiminaRy Review 350-1 (Aug. 2001), www.
hklawsoc.org.hk/pub_e/news/societyupdates/20010813a.asp (“That, subject to the choice
of structure of the academic stage, professional legal (or lawyering) skills have a legitimate
place in the academic stage of legal education in Hong Kong, but not as an essential
requirement for each school. Accordingly it is appropriate for a law school to include
such skills in the LLB curriculum either as an elective subject or subjects or as part of the
compulsory core.”).
Legal Education, Practice Skills, and Pathways to Admission
214 Journal of Legal Education
difference exist among the three jurisdictions in terms of the extent to which
the design of pathways to admission has been driven by perceived deficiencies
in the teaching of practice skills within the academic degree and, therefore, the
need to supplement these deficiencies as a prerequisite to practice. This paper
examines the development of pathways to admission and identifies a number
of interesting countervailing trends and contradictions.
A central question raised by the comparative analysis is whether professional
admission courses should serve as a gatekeeper in terms of assuring quality
and competence or whether they should serve simply as preparatory courses
for admission to the legal profession. The comparative analysis reveals a
number of countervailing trends and contradictions concerning fundamental
issues such as the function of a law degree and the impact of globalisation
on legal education and legal practice. This paper argues that it is important
for legal education to strengthen practice skills while maintaining a rigorous
focus on legal doctrine and general skills such as analysis, problem-solving
and research.
This paper is structured as follows: Part II explores the relationship between
legal education and legal practice by examining the emergence of professional
training courses and the increasing expectations for law schools to incorporate
practice skills into the curriculum. Parts III, IV, and V consider the pathways
to admission in Singapore, Hong Kong, and Australia, respectively, and track
the debates in each of those jurisdictions concerning the relative importance of
practice skills in their design. Part VI sets out the findings of the comparative
analysis and offers some observations by way of conclusion.
II. The Relationship Between Legal Education and Legal Practice
Over the past two decades or so, a significant trend in many jurisdictions,
including the United Kingdom and the three jurisdictions that are the focus
of this analysis, has been the emergence of professional training courses to
prepare law graduates for admission. In some cases, such as Hong Kong, these
courses are provided by the law schools. In other cases they are provided by
independent vocational education providers, such as the Singapore Institute
of Legal Education. In the case of the United Kingdom and Australia, the
professional training courses often involve a partnership between the course
providers and the law firms themselves and the design of firm-specific courses
that interact with the internal training programs within the law firms.
7
At least three factors might explain the trend toward professional training
courses following graduation and prior to admission. First, a need exists to
achieve consistency in the technical knowledge that law graduates require
and also to ensure that law graduates achieve the minimum competency and
7. For a discussion of this trend, see James R. Faulconbridge & Daniel Muzio, Legal Education,
Globalization, and Cultures of Professional Practice, 22 geo. J. LegaL eThicS 1335 (2009). As
noted by Faulconbridge and Muzio, the advent of vocational education and professional
development courses means that “the university is increasingly only one of the many sites in
which professional development and identity formation occurs.” Id. at 1337.
215
quality standards. This need has grown as the number of law schools has
increased—together with the number of graduates—and as the purpose of the
law degree has expanded over the past few decades to operate both as a liberal
arts degree and as a professional degree. In this regard, scholars have debated
the purpose of a law degree and argued about the impact of neoliberalism on
critical legal scholarship and on the socio-liberal aspects of legal education.
8
The second factor relates to changes in the nature of legal practice itself,
particularly in view of the globalization of legal practice, increased competition
9
and the consequential pressures on costs.
10
The related factors of globalization
and increased competition appear to have been key drivers of legal education
reform in the Australasian region, with many jurisdictions responding to
competitive pressures to produce world-class lawyers who can compete with
their overseas counterparts.
11
As an example of the pressures on costs, clients
are now often reluctant to pay for junior lawyer time on the basis that they
should not be expected to pay for junior lawyers “to be trained”; in some cases
they are refusing to pay for junior lawyer time at all. This has resulted in a
decrease in the opportunities for on-the-job training and an expectation on the
part of law firms that graduates will learn faster and “hit the ground running.”
In addition, the demands that clients place on lawyers in general and, in
particular, on their professional skills, have increased as the role of lawyers
8. See id. at 1338 (noting the debate about the purpose of a law degree and “whether the
university law degree should provide practice-relevant training or a more broad and liberal
education that seeks to develop academic abilities (critical thinking, normative values and
consciousness of positionality).”); Harry Arthurs, The World Turned Upside Down: Are Changes in
Political Economy and Legal Practice Transforming Legal Education and Scholarship, or Vice Versa? 8 inT’L
J. LegaL PRof. 11, 15-17 (2001); Margaret Thornton, The Demise of Diversity in Legal Education:
Globalization and the New Knowledge Economy, 8 inT’L J. LegaL PRof. 37 (2001); W. Wesley Pue,
Globalization and Legal Education: Views from the Outside-In, 8 inT’L J. LegaL PRof. 87 (2001).
9. The increased competition has been caused partly by the dismantling of the monopoly that
lawyers traditionally enjoyed in relation to legal practice and the liberalization of the legal
services market that has come about as a result of the move away from self-regulation. All of
this reflects a fundamental debate over the role of lawyers in society and how they should be
regulated. For a discussion about this in an Asian context, see Andrew Godwin, Barriers to
Practice by Foreign Lawyers in Asia—Exploring the Role of Lawyers in Society, 22
inT’L J. LegaL PRof. 299
(2015) [hereinafter Godwin, Barriers].
10. For a further discussion of some of these changes, see Arthurs, supra note 8, at 17. Arthurs
identifies the following changes in this regard: “the segmentation of legal markets and the
stratification of the profession; the dilution of the profession’s monopoly and enhanced
competition for legal work; the overall growth of the profession and the perceived—if not
actual—overcrowding of the market for legal services; the rapid transformation of collegial
relations and employment practices in elite legal firms; and of course, the emergence of
transnational legal practices serving global enterprises and the incursion of international
legal regimes into formerly self-contained domestic jurisdictions” (citations omitted).
11. For example, the 2001 Roper-Redmond Report in Hong Kong expressly agreed with the
need to produce lawyers who could “function in the world of international commerce, with
the skills and knowledge that [this] requires” and also lawyers who could “function well in
the ‘China market’ for legal services.” See
Redmond & RoPeR, supra note 6, at 68 (citing City
University of Hong Kong School of Law submission to the Consultants).
Legal Education, Practice Skills, and Pathways to Admission
216 Journal of Legal Education
has expanded and reached the point where their commercial experience and
business advice are often rated more highly than their technical advice. In a
transactional context, the value of lawyers is now perceived to be attributable
as much to their ability to act as “business advisors” as to their ability to act as
legal advisors.
12
The third reason, which is closely related to the first two reasons, concerns
the need to strengthen practice skills—as distinct from technical knowledge
that graduates are expected to have obtained at law school—and to simulate
the skills that graduates will need to apply in practice.
Despite the emergence of professional training courses—whether delivered
by the law schools themselves or by independent vocational education
providers—the literature and debate concerning the role of the law degree
suggest that law schools are increasingly being expected to incorporate
practice skills into the law degree curriculum. This is reflected in the increase
of clinical and transactional law programs within the curriculum and also the
use of experiential techniques to teach law.
13
It is relevant to consider why
the expectations of law schools have increased in this regard. Some would
argue that this is attributable to the influence the legal profession exerts over
legal education and the “gravitational pull” of the mega-law firms and their
interests.
14
Although one might debate whether such influence is a positive or
a negative force in this regard,
15
the argument that this is a relevant factor has
some weight. After all, the law degree in most jurisdictions is a prerequisite
to admission to practice, and it is therefore logical that the profession should
have input into the academic requirements for that purpose. A critical question
is what input the legal profession should have in the teaching of practice skills
12. The question of how business lawyers add value has spawned a vigorous debate among
scholars, largely triggered by Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills
and Asset Pricing, 94 yaLe L.J. 239 (1984). For a recent contribution to the debate, see Praveen
Kosuri, Beyond Gilson: The Art of Business Lawyering, 19 LewiS & cLaRk L. Rev. 463 (2015).
13. For a discussion about the trends toward transactional law and experiential learning, see
Andrew Godwin, Teaching Transactional Law - A Case Study from Australia with Reference to the US
Experience, 16 TRanSacTionS Tenn. J. BuS. L. 343 (2015) [hereinafter Godwin, Transactional];
Andrew Godwin, Teaching Corporations Law from a Transactional Perspective and Through the Use of
Experiential Techniques, 25 LegaL educ. Rev. 221 (2015). The trends have been particularly
strong in the United States, where the sole pathway to admission is the bar examination and
students are not required to complete a professional training course.
14. See Faulconbridge & Muzio, supra note 7, at 1349 (arguing that “legal education is increasingly
being captured by large organizations which are rearticulating its structure and content
around their own strategic priorities. This implies, in particular, the gradual inflection of
legal education with commercial and managerial objectives.”). Thomasset and Laperrière
have described this as the “infeudation” of law schools to the legal profession. Claude
Thomasset & René Laperrière, Faculties Under Influence: The Infeudation of Law Schools to the Legal
Professions, in The Law School – Global Issues, Local Questions (Fiona Cownie ed., 1999). See
also Thornton, supra note 8, at 42-45; Arthurs, supra note 8, at 18.
15. For arguments about the negative aspects of neoliberalism or what has been described as
“academic capitalism,” see Arthurs, supra note 8, at 15-17; Thornton, supra note 8, at 42-45;
Pue, supra note 8, at 93-95.
217
within the law school curriculum as distinct from the teaching of doctrine or
substantive law.
III. Singapore
The evidence suggests the introduction of the bar examination in Singapore
was partly driven by the inadequacies of the previous Practical Course in Law
(PCL) in providing graduates with the necessary practice skills. The PCL was
introduced in 1967 and was administered by the Board of Legal Education.
16
It
was significantly revised in 1982, and then replaced following the 2007 Rajah
Report as outlined below.
Writing in 1985, Lim and Ong argued that the PCL was “too academic to
confer sufficient practical knowledge to the student.”
17
According to Lim and
Ong:
The Practice Law Course is not without merits but is by itself too insular,
simulated and unstimulating. Further, what it teaches is not reinforced in
pupillage where not many are fortunate enough to learn under a committed
master. Moreover, it is submitted that the whole system of legal training
in Singapore has unwittingly bred self-centred habits of thought. Legal
education should cultivate healthy attitudes towards community service. The
profession is a common calling—not a trade. This fact has apparently not been
acknowledged by present modes of training in Singapore.
18
Two aspects of the above comments are relevant for the purposes of the
analysis in this paper. First, the comment that the course was “too academic to
confer sufficient practical knowledge to the student” suggests that the course
was perceived to be too academic in its approach to imparting practice skills.
Arguing that the course was “simply an extension of the four years spent at
the Law Faculty,” Lim and Ong argued that there was too little time in which
to learn anything substantial.
19
In addition, the simulated exercises offered
limited benefits because of the lack of realism and the artificial context in
which the simulations took place.
20
In particular, insufficient attention was
16. See Sylvia Lim & Ong Keng Sen, A Time to Confront the Malaise: A Review of Post-Graduate Legal
Training in Singapore, 6 Sing. L. Rev. 87 (1985).
17. Id. at 102.
18. Id. at 87.
19. Id. at 91.
20. Id. at 91-92. Other writers have noted the extent to which simulations may “incorporate
hidden assumptions that may not entirely reflect reality” and the associated challenge of
authenticity; namely, the risk that the effectiveness of the exercise is undermined by the
realisation on the part of students that the exercise is not authentic. See John O. Sonsteng et
al., A Legal Education Renaissance: A Practical Approach for the Twenty-First Century, 34 wm. & maRy
L. Rev. 303, 417 (2007). The challenges of authenticity are also explored by Karen Barton,
Patricia McKellar and Paul Maharg, where the writers argue that it is possible to overcome
this challenge “by defining authenticity as distributed intelligence within the world, and
by using that intelligence in simulation and transactional learning.” Karen Barton et al.,
Legal Education, Practice Skills, and Pathways to Admission
218 Journal of Legal Education
paid to “humanistic” or soft skills, such as communication skills, and such
skills “appeared to be relegated to a secondary position after advocacy…
.”
21
Accordingly, Lim and Ong recommended replacing the PLC with an
“introductory course” to serve as a “preview and cognitive framework to latter
experiences with real clients” followed by a clinical course.
22
The second aspect of interest, which is still evident in the current debate, is
the call for legal education to “cultivate healthy attitudes towards community
service” and the assertion that the profession “is a common calling—not a
trade.”
23
This public-interest element resonates with recent calls in the Report
of the 4
th
Committee on the Supply of Lawyers for the current offering of
clinical subjects to be supported and expanded.
24
The reference to the
community service lawyers are expected to fulfill reflects an ongoing debate
in many jurisdictions in Asia concerning the role of lawyers in society and,
consequently, how they should be educated and regulated.
25
The 2007 Rajah Report was based on a comprehensive review of legal
education and the legal profession.
26
The report considered the utility of the
admission process at the time. In particular, the Rajah Report noted that the
duration of the Practical Law Course, which was six months in duration, was
possibly insufficient for practice skills to be meaningfully imparted to the law
graduates.
27
In addition, the Rajah Report found that—
the Practical Law Course does not function as a gatekeeper to the entry of
new graduates to the profession because traditionally, almost all candidates
who have completed a local LLB degree and/or the Diploma in Singapore
Law (“DipSing”) proceed to pass the Practical Law Course without difficulty.
Authentic Fictions: Simulation, Professionalism and Legal Learning, 14 cLinicaL L. Rev. 143, 191 (2007).
21. Lim & Ong, supra note 16, at 93.
22. Lim & Ong, supra note 16, at 93.
23. Lim & Ong, supra note 16, at 87.
24. See SingaPoRe miniSTRy of Law, RePoRT of The 4
Th
commiTTee on The SuPPLy of LawyeRS
para. 4.23 (May 2013).
25. Id. at para. 2 (stating that “[t]here is at present a shortage of lawyers who practise community
law. If no measures are taken to address this, the shortage will be exacerbated…”).
For a discussion about restrictions on the practice of foreign lawyers in Asia and what this
reveals about their role in society, see Godwin, Barriers, supra note 9. A central contention
in this article is that barriers to practice by foreign lawyers are motivated not just by
protectionism but also by differences of views about the fundamental role of lawyers and
their obligations to society.
26. FinaL RePoRT, RePoRT of The commiTTee To deveLoP The SingaPoRe LegaL SecToR
(Sept. 2007), https://www.mlaw.gov.sg/content/dam/minlaw/corp/assets/documents/
linkclicke1d7.pdf [hereinafter RaJah RePoRT].
27. Id. at para. 2.54.
219
Instead, the gatekeeping function is performed at the stage of the university
admissions.
28
The Rajah Report further noted the following:
[T]here are advantages to adding a second gatekeeper for entry into the
profession at the end of the vocational training phase for the following reasons:
(a) The training for a law degree may not have the same emphases and
objectives as the training for entry into legal practice. The former focuses on
academic and analytical legal skills, while the latter primarily prepares law
graduates for the demands and vicissitudes of legal practice by testing “nuts
and bolts” topics such as procedure. Both are equally important.
(b) The LLB degree is a useful degree generally, even for those who do not wish
to enter into legal practice, and should be made available to more individuals.
A second gatekeeper is therefore essential to ensure that the numbers entering
the profession are responsive to market demands.
(c) A more comprehensive and rigorous training course will ensure quality and
consistency in the standards of new lawyers who wish to practise, especially
as we continue to recognise a wider pool of applicants and candidates for law
schools . . . and if the LLB programme is reduced in duration and its coverage
of practical law subjects . . . .
29
The advantages of adding a second gatekeeper were also motivated by
the perceived need to “enable Singapore to welcome graduates from all over
the world and from all universities, while ensuring the quality of students
admitted to the Bar.”
30
The issues of what sort of gatekeeping is appropriate,
when gatekeeping should occur, and who should act as the gatekeeper are very
relevant in the Hong Kong context, as discussed in Part IV below.
Reflecting current realities concerning the limitations of on-the-job training
as outlined in Part II above, the Rajah Report identified the limited ability of
pupillage in developing practical skills.
31
Accordingly, the Rajah Committee
28. Id. at para. 2.56.
29. Id. at para. 2.57.
30. Id. at para. 2.75. “The Committee envisages that qualification by way of Singapore’s
Vocational Training Course may eventually have the same cachet for lawyers wishing to
practise in the region as the New York Bar exam is to lawyers worldwide. To promote this,
Singapore should open the Vocational Training Course to graduates from all over the world
and, to this extent, a foreign course for foreign law graduates should be implemented in the
future.” Id.
31. Id. at para. 2.61. “Pupillage, at some firms, has become a misnomer particularly when the
pupil master has little direct contact with the pupil. In other instances, pupils are viewed
as a source of cheap labour in some firms, where they are sometimes made to carry out
menial or time-consuming tasks instead of receiving meaningful on-the-job training.” Id.
Similar to the system of articles previously adopted in jurisdictions in Australia, pupillage in
Legal Education, Practice Skills, and Pathways to Admission
220 Journal of Legal Education
recommended introducing a bar examination and replacing the PLC with a
“Vocational Training Course,” which would “retain its traditional function of
ensuring competency in core subject areas but [would] also be more responsive
to the needs of individual students by allowing them to tailor their own courses
through the election of optional subjects in their area of specialisation such
as advanced civil and criminal procedure, litigation skills, alternative dispute
resolution skills and mechanisms, admiralty law, corporate practice and
corporate restructuring (including, for instance, insolvency law and mergers
and acquisitions).”
32
The Rajah Report also recommended the introduction of
a training contract, which would “be entered into with a firm, rather than with
a partner” and would “oblige the firm to engage its trainees in a structured
learning programme that would include, for instance, client-interviewing skills
and advocacy skills (if the trainee is in the litigation department).”
33
The Singaporean government accepted the bulk of the recommendations of
the Rajah Report.
34
As a result, the bar examination was introduced to replace
both the Diploma of Singapore Law (Dip Sing), which foreign lawyers had
previously been required to complete in order to qualify in Singapore, and
the PCL.
35
Part A of the bar exam replaced the Dip Sing and applies only
to graduates who attended prescribed non-Singaporean universities. The
Legal Profession (Qualified Persons) Rules list universities from which a law
degree will be recognized in Singapore.
36
The holder of a recognized degree
Singapore previously involved a pupil being “articled” to an individual lawyer, who would
be responsible for instructing the pupil in the principles and practice of law.
32. RaJah RePoRT, supra note 26, at para. 2.63.
33. RaJah RePoRT, supra note 26, at para. 2.66. Like the positions in Australia and the U.K., the
training contract places the onus of training on the firm rather than an individual solicitor
or master. The Rajah Report further noted “that the training offered to new associates and
trainees is regarded a major attraction in jurisdictions such as the UK and the US, and
that surveys and rankings of law firms among associates regularly include the standard of
training as a factor.” Id. at para. 2.67.
34. Government Accepts Key Recommendations of Justice V K Rajah’s Committee on the Comprehensive Review
of Legal Services Sector, miniSTRy of Law SingaPoRe (Dec. 6, 2007), https://www.mlaw.gov.
sg/news/press-releases/government-accepts-key-recommendations-of-justice-v-k-rajah-s-
committee-on-the-comprehensive-review.html. In debate following the publication of the
Rajah Report, parliamentarians noted the duplicative nature of the Dip Sing Course, the
disincentives for graduates from foreign universities, the extent to which the requirements
had led to a shortage of lawyers in Singapore and the need to set appropriate standards
for admission. Singapore Parliamentary Debates, Official Reports, vol. 84, cols. 1054-99,
1060-4 (Feb. 27, 2002), https://sprs.parl.gov.sg/search/topic.jsp?currentTopicID=00002924-
WA¤tPubID=00004754-WA&topicKey=00004754-WA.00002924-WA_1%2B%2B
(statements of Mr. Christopher de Souza and Mr. Hri Kumar Nair).
35. Legal Profession Act (Chap. 161, 2009 Rev. Ed.) (Sing.). See also Legal Profession (Qualified
Persons) Rules, Rule 15 (Rev. Ed. 2002) (Sing.); Legal Profession (Admission) Rules 2011
(Sing.).
36. These include universities in the United Kingdom, Australia and New Zealand, First to
Fourth Schedules, Legal Profession (Qualified Persons) Rules, Rule 15 (Rev. Ed. 2002)
(Sing.), and the United States, Id. at Fifth Schedule. See also Approved Universities, Ministry
221
at the relevant level (typically the top thirty percent of the graduating cohort)
is eligible to sit Part A of the bar exam.
37
Preparatory courses for Part A are
conducted, but these are not compulsory. Holders of a prescribed Singaporean
Law degree do not need to complete Part A of the bar exam.
38
The preparatory course to Part B, which is compulsory for all graduates,
replaced the PCL. The preparatory course for Part B of the bar examination
runs full time between July and December.
39
One of the aims of Part B of the
bar examination is to “train candidates in the skills of the professional lawyer
and provide opportunities to practise these skills under supervision, with
particular emphasis on the core competencies expected of a newly-admitted
lawyer.”
40
Students are forbidden to engage in outside work while completing
the course.
41
The compulsory subjects are as follows: civil litigation practice;
criminal litigation practice; insolvency law and practice; real estate practice;
family law practice; ethics & professional responsibility; and professional
skills.
42
In addition, students must complete two elective subjects, one from
Category A and one from Category B. The electives in Category A are advanced
corporate practice; intellectual property law practice; and the law and practice
of arbitration. The electives in Category B are admiralty practice; wills,
probate, and administration; mediation skills; and cross-border transactions.
43
After completing Part B of the bar examination, graduates must “satisfactorily
[serve] the practice training period...”
44
This currently runs for six months.
The Report of the 4
th
Committee on the Supply of Lawyers, which was
released in May 2013, drew comparison with other jurisdictions, including
Hong Kong and Australia, on the prevalence of lawyers in society and
of Law Singapore, https://www.mlaw.gov.sg/content/minlaw/en/practising-as-a-lawyer/
approved-universities.html (last updated Sep. 9, 2015).
37. Legal Profession (Qualified Persons) Rules, Rule 15 (Rev. Ed. 2002) (Sing.), see also Admission
Requirements, miniSTRy of Law SingaPoRe, https://www.mlaw.gov.sg/content/minlaw/en/
practising-as-a-lawyer/AdmissionRequirements.html (last updated Sep. 9, 2015); Part A,
SingaPoRe inSTiTuTe of LegaL educaTion, http://www.sile.edu.sg/part-a (last updated
July 14, 2016).
38. Legal Profession (Qualified Persons) Rules, Rule 15 (Rev. Ed. 2002) (Sing.), see also Admission
Requirements, miniSTRy of Law SingaPoRe, https://www.mlaw.gov.sg/content/minlaw/en/
practising-as-a-lawyer/AdmissionRequirements.html (last updated Sep. 9, 2015); Part B,
SingaPoRe inSTiTuTe of LegaL educaTion, http://www.sile.edu.sg/part-b (last updated
July 14, 2016).
39. Part A, SingaPoRe inSTiTuTe of LegaL educaTion, http://www.sile.edu.sg/part-a (last
updated July 14, 2016).
40. Part B, SingaPoRe inSTiTuTe of LegaL educaTion, http://www.sile.edu.sg/part-b (last
updated July 14, 2016).
41. Id.
42. Id.
43. Id.
44. Legal Profession Act (Chapter 161) s 13(1)(c). http://www.sile.edu.sg/pdf/Legal_Profession_
Act_(Cap_161,_2009_Rev_Ed).pdf.
Legal Education, Practice Skills, and Pathways to Admission
222 Journal of Legal Education
considered measures that Singaporean law schools could take to reduce the
level of attrition in the legal industry.
45
Chief among its recommendations
was for law schools to provide “early preparation for the realities of practice,”
noting that it is “imperative that law students [be] given a realistic view of
what practice is like as part of their law school experience” and that this can
be achieved “through sufficient exposure to law firms via internships and
programmes that may be offered in law school.”
46
To this end, the Report
recommended that “the existing clinical legal programmes at the 2 local law
schools should be supported and expanded.”
47
The Report noted various
subjects that had been introduced at the universities, including The Law Clinic
at National University of Singapore and the Asian Rule of Law Programme
at Singapore Management University,
48
and suggested that a more structured
internship program be developed by the two law schools
49
and that the law
schools work together with the Law Society to set up a centralized and more
structured system for internships. The report also recommended establishing
a third university in Singapore to focus on “training prospective lawyers keen
on practising community law”
50
The findings of the Report have been received
favorably by the Singaporean government.
51
It is interesting to note that the recommendations for law schools to expand
their clinical legal programs and to provide “early preparation for the realities
of practice” were motivated partly by the need to reduce the level of attrition
in the legal industry in Singapore. This suggests that some graduates are ill-
prepared for practice, despite the introduction of Parts A and B of the bar
examination and the relevant preparatory courses. It also suggests that law
schools should prepare graduates for the realities of practice and should
strengthen their role as a first gatekeeper in this regard. To this end, there
is a perceived need for law schools to expand their clinical and internship
programs.
45. SingaPoRe miniSTRy of Law, RePoRT of The 4
Th
commiTTee on The SuPPLy of LawyeRS
(May 2013).
46. Id. at para. 4.19.
47. Id. at para. 4.23.
48. Id. at paras. 4.20–4.21.
The Report also acknowledged the challenges that arise in teaching clinical law programs,
including attracting teachers with the relevant experience, ensuring consistent grading, and
ensuring the existence of sufficient rigor in clinical legal programs. Id. at para. 4.22. For a
discussion about these challenges, see Godwin, Transactional, supra note 13.
49. SingaPoRe miniSTRy of Law, RePoRT of The 4
Th
commiTTee on The SuPPLy of LawyeRS
(May 2013) para. 4.29.
50. Id. at para. 2.21.
51. Government Welcomes Key Recommendations of the 4th Committee on the Supply of Lawyers, miniSTRy of
Law SingaPoRe (May 28, 2013). https://www.mlaw.gov.sg/news/press-releases/government-
welcomes-key-recommendations-of-the-4th-committee-on-the-supply-of-lawyers.html.
223
IV. Hong Kong
(i) Previous reform in Hong Kong
The need to strengthen practice skills played a significant role in reshaping
the PCLL following the Roper-Redmond Report in 2001. The Roper-
Redmond Report was the product of a review of legal education conducted
by Professor Paul Redmond and Mr. Christopher Roper under the auspices
of the Steering Committee on Legal Education and Training between 1999
and 2002.
52
As noted by Hong Kong’s three law schools, the effect of the reforms
implemented following the Roper-Redmond report was as follows:
The academic components of the PCLL programmes were taken out and
rolled back to the LLB programme so as to make room for more practice
training in the PCLL course, which has since 2005 become a skills-based
programme to prepare law graduates to embark on either traineeship (to
become solicitors) or pupillage (to become barristers). The Law Society and
the Bar Association each set out their own benchmarks, which have to be met
by the PCLL providers.
53
The implemented reforms did not adopt the recommendations of
the Roper-Redmond Report in full. The Roper-Redmond Report had
recommended replacing the PCLL with a new sixteen-week legal practice
course (LPC), which would be taught outside the universities by a “free-
standing institution.”
54
The reasons given for replacing the PCLL with a legal
practice course delivered by an independent body were that “the development
of the PCLL [had] been constrained by its location as a distinct programme
of practical legal training offered within an academic institution;”
55
the PCLL
was not able to provide the “essential element of practical training which
enables academic training to be used in practical ways;” and pupillage or
training contracts were not able to provide “training in lawyering skills to the
standard required if the Hong Kong legal profession [was] to be of world
52. For an outline of the reforms, see the JoinT SuBmiSSion fRom The facuLTy of Law, The
univeRSiTy of hong kong, The facuLTy of Law, chineSe univeRSiTy of hong kong, and
The SchooL of Law, ciTy univeRSiTy of hong kong To The PaneL on adminiSTRaTion
of JuSTice and LegaL SeRviceS, The LegiSLaTive counciL (“Legco”) (2013), http://www.
legco.gov.hk/yr13-14/english/panels/ajls/papers/aj1216cb4-234-1-e.pdf [hereinafter JoinT
SuBmiSSion]. For the report, see Redmond & RoPeR, supra note 6.
53.
JoinT SuBmiSSion, supra note 52, at para. 6.
54.
Redmond & RoPeR, supra note 6, at 200-05. According to the recommendations, the
institution would “be governed by a board on which the two branches of the profession
would have substantial representation but which would also include people drawn from the
judiciary, government, the universities and the wider community.” Id. at 357. This proposal
was similar to the current arrangement in Singapore with the Singapore Institute of Legal
Education. See supra Part III.
55.
Redmond & RoPeR, supra note 6, at 112.
Legal Education, Practice Skills, and Pathways to Admission
224 Journal of Legal Education
standard.”
56
The report recommended that the LPC “take the form of solely
practical training, that is training in transactions and skills, within a strong
ethical context”; that “innovative teaching methods be employed, including
learning-by-doing and the inclusion of some distance learning approaches”;
that “the LPC curriculum be based on a conceptual framework of how legal
work is done rather than necessarily being structured around subject areas of
the law”; and that “the LPC, to the extent possible, seek to complement and
reinforce the training received in pupillage or a trainee solicitor contract.”
57
Instead, however, major reforms were made to the PCLL, the purpose of
which was to “convert the PCLL into a course with generally similar aims and
objectives to those envisaged by the consultants for their proposed LPC.”
58
Arguably, the reforms have gone further than those envisaged under the LPC
model through the revision of the PCLL to incorporate a highly practice-
oriented focus,
59
the commitment of government and university resources to
enable the curriculum to be revised on an ongoing basis, and the recruitment
of experienced practitioners from inside and outside Hong Kong to teach into
the program.
60
As before, the PCLL has continued to be delivered by the three
law schools instead of by an independent body.
61
A detailed review of legal education in Hong Kong is currently being
undertaken by the Standing Committee on Legal Education and Training
(SCLET). The SCLET is “empowered, amongst other things, to keep under
review legal education and training in Hong Kong, to make recommendations
thereon, and to collect and disseminate information about legal education and
training in Hong Kong.”
62
56. Redmond & RoPeR, supra note 6, at 185.
57. Redmond & RoPeR, supra note 6, at 205-06. This proposal was similar to the approach
currently adopted in the U.K. under its legal practice course and in Australia under its
practical legal training course. See infra Part V.
58. Review of Legal Education and Training in Hong Kong—Progress Report LC Paper No. CB(2) 987/01-
02(03), Hong Kong Legislative Council 3 (Jan. 2002), http://www.legco.gov.hk/yr01-02/
english/panels/ajls/papers/aj0128cb2-987-3e.pdf.
59. This is reflected in practical courses such as the China practice course at Hong Kong
University, which was designed by Richard Wu.
60. This, we suggest, is facilitated by the provision of professional training courses by the
universities, which appeals to experienced alumni and practitioners who want to make a
career change to academia but otherwise have no interest in delivering training in private
professional legal education providers. Further, the law schools are able to tap public and
university funding, in the form of teaching development grants and teaching exchange
fellowships, which encourage collaboration with academics from overseas and underpin
Hong Kong’s status as an international market for legal services.
61. The three providers are Hong Kong University, Chinese University of Hong Kong, and
City University of Hong Kong.
62. Chairman’s Message, STanding commiTTee on LegaL educaTion and TRaining (2016), http://
www.sclet.gov.hk/eng/index.htm (last updated April 21, 2016). As explained on the website,
“In November 1999, an ad hoc Steering Committee on Legal Education and Training was
established to conduct a comprehensive review of legal education and training in Hong
225
(ii) The introduction of a common entrance examination in Hong Kong
Independently of the SCLET review, the Law Society of Hong Kong
commenced its “Consultation on the feasibility of implementing a common
entrance examination (CEE) in Hong Kong” in 2013.
63
Although the CEE
would apply to the admission of solicitors and not barristers, the Hong Kong
Bar Association expressed concerns in relation to the introduction of the CEE
in its submission to the Comprehensive Review of the Legal Education and
Training and Hong Kong,
64
as it did not perceive any issue with the quality of
solicitors joining the bar. In response to the concerns by some members of the
Legislative Council of Hong Kong that the PCLL operated as a “bottleneck”
to admission,
65
the Bar Association argued:
Given that the market could not absorb all those who want to be a practising
lawyer, it is inevitable that somewhere in the educating process there would
be a bottle neck eliminating those who are less competitive. We see no reason
why the bottle neck should not be at the stage of PCLL admission. After all
the PCLL training is really directed at preparing practising lawyers and it
would even be a bigger waste of resources if after a full year of PCLL training,
the holders of the PCLL then find themselves unable to find a trainee contract
or are forced out of the Bar because of insufficiency of work.
66
On January 6, 2016, the Law Society of Hong Kong announced that the
“[t]he Council of the Law Society has decided that, starting from 2021, a
person may only enter into a trainee solicitor contract if that person has passed
Kong. Following that review, the Steering Committee made numerous recommendations,
one of which was the establishment of a statutory body with sufficient status and powers to
oversee the implementation of reforms and to monitor the future direction of legal education
and training.” Id.
63. Consultation on the Feasibility of Implementing a Common Entrance Examination in Hong Kong, Law SocieTy
of hong kong (2014), http://www.hklawsoc.org.hk/survey/cee/HKLS_Consultation_
document.pdf. For background to this consultation, see Jack Burke, An Impediment to Accord
or a Springboard for Change? The Proposal to Introduce a Common Qualifying Exam in Hong Kong, 23 aSia
Pac. L. Rev. 123 (2015).
64. SuBmiSSion of The hong kong BaR aSSociaTion on The conSuLTaTion PaPeR of The
comPRehenSive Review of The LegaL educaTion and TRaining in hong kong By The
STanding commiTTee on LegaL educaTion and TRaining, para. 19 (Dec. 2, 2014) (“On the
whole…the Bar is satisfied with the quality and standard of the PCLL graduates produced
by the universities.”) [hereinafter SuBmiSSion BaR aSSociaTion].
65. The Law Society has indicated that the introduction of the CEE has not been driven by
any “bottleneck” concern; however, some members of LegCo had expressed concern that
the PCLL “had become a bottleneck for admission to the legal profession.” See PaneL on
adminiSTRaTion of JuSTice and LegaL SeRviceS BackgRound BRief PRePaRed By The
LegiSLaTive counciL SecReTaRiaT foR The meeTing on 27 aPRiL 2015, The Law SocieTy
of hong kong’S PRoPoSaL To inTRoduce a common enTRance examinaTion in hong
kong, Lc PaPeR no. cB(4)825/14-15(07), para. 36 (Apr. 25, 2015), http://www.legco.
gov.hk/yr14-15/english/panels/ajls/papers/ajls20150427cb4-825-7-e.pdf [hereinafter Law
SocieTy PRoPoSaL].
66. SuBmiSSion BaR aSSociaTion, supra note 64, at para. 43.
Legal Education, Practice Skills, and Pathways to Admission
226 Journal of Legal Education
a Common Entrance Examination (“CEE”).”
67
The CEE would be set and
marked by the Law Society.
68
The Law Society would require completion of
the PCLL course, but would not require any examination to be set by the
providers of the PCLL.
69
The announcement stated that the purposes of the CEE were as follows:
(1) to uphold the quality of the entrants to the solicitors’ profession; (2) to
provide access to those who have the ability to qualify as a solicitor;
70
and (3)
to maintain the standards of the profession and to protect public interest.
71
The
debate surrounding the announcement suggests that the main drivers include
the following: (1) the need to achieve consistency of assessment among the
PCLL providers;
72
and (2) the need to have a second gatekeeper for entry to
the profession as a result of the proliferation of law schools and the perceived
decrease in standards and quality. The need to focus more on the assessment
of practice skills than on academic knowledge was also identified as a potential
issue in the consultation paper.
73
As noted above, the decision to introduce a CEE has been contested by the
Bar Association, which expressed its “serious concerns” and regret that the
announcement had been made without any consultation or prior notice.
74
The
67. Common Entrance Exam, supra note 4.
68. Id.
69. Id.
70. There is little background to the access concern. However, the Law Society had foreshadowed
that the CEE could “act as an alternative for those unable to access the PCCL” in its
consultation paper. Consultation on the Feasibility of Implementing a Common Entrance Examination in
Hong Kong, Law SocieTy of hong kong, para. 2.2 (2014), http://www.hklawsoc.org.hk/
survey/cee/HKLS_Consultation_document.pdf. In addition, in its report to LegCo, the
“Law Society advised that the proposed CEE might provide a second chance for students
who failed in the PCLL examinations to attain a qualification for entrance to the legal
profession.” Law SocieTy PRoPoSaL, supra note 65, at para. 34.
71. Common Entrance Exam, supra note 4.
72. As noted in the consultation paper, this could be achieved through retaining the separate
PCLL courses but requiring students to take the same, pooled assessment. The consultation
paper noted, however, that this would “affect the providers’ ability to exercise academic
autonomy in design and assessment of their courses.” Examination in Hong Kong, Law SocieTy
of hong kong, para. 4.2.3 (2014), http://www.hklawsoc.org.hk/survey/cee/HKLS_
Consultation_document.pdf. The argument that a CEE is justified by the need to achieve
consistency has been rejected by the three law schools, which note that all three PCLLs are
closely monitored by the legal profession and that a better solution might lie in changing the
monitoring methodology and replacing annual monitoring with intensive monitoring every
few years as in other jurisdictions. See JoinT SuBmiSSion, supra note 52, at para. 23.
73. Consultation on the Feasibility of Implementing a Common Entrance Examination in Hong Kong, Law
SocieTy of hong kong, para. 2.2 (2014), http://www.hklawsoc.org.hk/survey/cee/
HKLS_Consultation_document.pdf. The consultation paper identified the challenges of
assessing certain skills in a bar examination and outlined the approach in other jurisdictions.
74. STaTemenT of The hong kong BaR aSSociaTion on The Law SocieTy’S deciSion
To imPLemenT a common enTRance examinaTion foR QuaLifying enTRieS inTo The
227
Bar Association also argued that the announcement had “short circuited”
75
the SCLET review and expressed its concern that the CEE would be viewed
simply as “a means for the Law Society to control the number of entrants to
the profession.”
76
The University of Hong Kong Faculty of Law responded to the
announcement by noting that it was pleased that the Law Society recognized
the importance of the PLCC, but arguing that the Law Society had not
provided any justification for the necessity of the CEE.
77
In its response to
the University of Hong Kong, the Law Society elaborated on its reasons for
introducing the CEE, stating that as the regulator of the solicitors’ branch of
the profession, the Law Society had an obligation to ensure consistency in
professional standards for entrants to the profession and that it was necessary
to keep the standards constantly under review “with the increase in the number
of law schools and the development of legal education landscape over the
years.”
78
In particular:
. . . there is a conflict of interests for the law schools to provide the PCLL
course and administer the PCLL examinations to their own students under
the current system, for which they charge for tuition. They also provide
undergraduate law degrees for which a sizeable portion of their graduates
seeking to enter the Hong Kong solicitors’ profession (and indeed the
barristers’ profession) would be required to enroll in and be examined upon.
. . . The institutions teaching the PCLL should be separate from the
institution administering the examination so as to ensure impartiality in the
examinations. The CEE will address this conflict as the Law Society will not
be involved in teaching any preparatory course on CEE.
79
The conflict-of-interest concern is interesting, as it suggests the law schools
have a misplaced incentive to pass as many students as possible given that they
provide them with undergraduate law degrees. In response to this point, it is
reported that the Bar Association has argued that a conflict of interest would
arise on the part of the Law Society itself if the criteria for entering the legal
SoLiciToRS’ PRofeSSion para. 1 (Jan. 8, 2016), http://www.hkba.org/sites/default/
files/20160108%20-%20Public%20Statement%20of%20the%20Bar%20on%20CEE%20
%28e%29.pdf.
75. Id. at para. 6.
76. Id. at para. 9.
77. HKU Law Responds to the Law Society of Hong Kong’s Proposed Common Entrance Examination, The
univeRSiTy of hong kong facuLTy of Law (Jan. 6, 2016), http://www.law.hku.hk/
Files/20150106_HKU%20responds%20to%20Law%20Society%20of%20Hong%20Kong_
Eng-press.pdf.
78. Response to the Statements by the University of Hong Kong on Common Entrance Examination, The Law
SocieTy of hong kong para. 8 (Jan. 11, 2016), http://www.hklawsoc.org.hk/pub_e/news/
press/20160111.asp.
79. Id. at paras. 9-10.
Legal Education, Practice Skills, and Pathways to Admission
228 Journal of Legal Education
profession were to be set solely by the existing legal profession (i.e., the Law
Society).
80
Further, the implementation of the plan would constitute “a means
of controlling number and eliminating competition, and [would be] against
public interest.”
81
In terms of the consistency and quality concerns, the Law Society has
suggested that by assessing solicitors using the same “rigorous” standards,
the CEE will “improve consistency and enhance the quality and competence
of the entrants to the solicitors’ profession thereby ensuring that the public
interest is served and the confidence of the community in the legal profession
is sustained.”
82
In response, the Bar Association has argued that there is “no
suggestion and no evidence” of problems with the current practice whereby
the three law schools assess students.
83
In this regard, it could be argued
that the highly competitive admission standards for PCLL in all of the three
universities already goes some way toward achieving the goal of quality and
competence as identified by the Law Society.
84
Interesting parallels exist between criticisms of the former PCL in Singapore
and the concerns regarding the current PCLL in Hong Kong. First, some have
expressed the concern that the PCLL is an extension of the academic degree,
although this would appear to overlook the reforms introduced following
the Roper-Redmond Report, under which the PCLL became skills-based.
85
Second, as noted above, concerns have been expressed about having the
80. Stuart Lau, Hong Kong Law Society Softens Stance on New Exam but Wants a Say in Setting Questions for
Students, S. china moRning PoST (Feb. 15, 2016), http://www.scmp.com/news/hong-kong/
law-crime/article/1913166/hong-kong-law-society-softens-stance-new-exam-wants-say.
81. Further Submission to the SCLE on the Decision of the Law Society to Hold the CEE, hong kong BaR
aSSociaTion para. 10 (Feb. 12, 2016), http://www.hkba.org/sites/default/files/20160212-
Hong%20Kong%20Bar%20Association%20further%20submission%20to%20SCLE.pdf.
82. President’s Message, Common Entrance Examination, hong kong LawyeR (Feb. 2016), http://
www.hk-lawyer.org/content/common-entrance-examination.
83. Further Submission to the SCLE on the Decision of the Law Society to Hold the CEE, hong kong BaR
aSSociaTion para. 9 (Feb. 12, 2016), http://www.hkba.org/sites/default/files/20160212-
Hong%20Kong%20Bar%20Association%20further%20submission%20to%20SCLE.pdf.
84. In Hong Kong, the minimum admission standard to the PCLL is a good lower-division
second class honors undergraduate law degree or its equivalent from a local or overseas
common-law school. In practice, the academic standard of students admitted to the PCLL
has been constantly on the rise because of competition for places from both local and
overseas laws graduates. This was partly attributed to the change of sovereignty of Hong
Kong in 1997. Before the handover, law graduates of British law schools could get qualified
in U.K. without the need to study PCLL if they wished to practice law in Hong Kong. With
the reunification of Hong Kong with China in 1997, all law graduates in the U.K. who intend
to practice law in Hong Kong must complete the PCLL, or take the Overseas Lawyers
Qualification Examination after admission in the U.K. This has created the “bottleneck”
problem for the PCLL, as it was originally designed in the 1970s for law graduates of the
University of Hong Kong only.
85. See Law SocieTy PRoPoSaL, supra note 65; Burke, supra note 63, at 134 (arguing that the PCC
is now “sufficiently skills oriented.”).
229
PCLL administered by the law schools and the conflict of interest that this is
said to create.
86
In relation to the skills element of the CEE, the Joint University Submission
submitted that the “heavy component of skills-training” currently provided
under the PCLL could not be replaced entirely by the CEE, noting that “it
[would be] difficult to see how a single common qualification examination
[would] produce better lawyers if there [were] no preparatory course of
study.”
87
If the CEE is introduced as announced by the Law Society, it is likely
that the PCLL will become the preparatory course for the examination, along
similar lines to the Part B course in Singapore.
In addition, it is relevant to consider the debate about the numbers
of entrants to the profession and whether concerns around quality and
consistency are simply a proxy for protectionism. Hong Kong has always been
an open market for the provision of legal services. However, it is possible that
the increase in the number of lawyers from other jurisdictions qualifying to
practice Hong Kong law has added to competitive pressures and, therefore,
protectionist sentiments. Ironically, if such sentiments exist, the introduction
of the CEE may be counterproductive, as it may lead to an increase of foreign
lawyers practicing in Hong Kong if there is a surge in the numbers of foreign
lawyers taking and passing the CEE. This outcome is not inconceivable, given
that Hong Kong is the only jurisdiction in the whole of China whose legal
profession is open to foreign law firms and lawyers without heavy government
regulation. As the China market is the focus of many international law firms,
the latter have every incentive to increase their presence and the number of
foreign lawyers becoming qualified in Hong Kong through CEE in order to
serve the Chinese market.
Finally, it is interesting to note that the recent debates in Hong Kong do
not appear to have involved any calls for practice skills to be strengthened
in the academic law degree curriculum. This is perhaps not surprising given
that practice skills are the domain of the PCLL, which is delivered by the law
schools themselves. That said, whether practice skills should be strengthened
in the curriculum and whether law schools should play a more active role along
the lines suggested by the recent calls in Singapore remain open questions.
V. Australia
In Australia, the importance of developing legal skills within the law
school curriculum, including through clinical legal education, was noted
in the Pearce Report, which was presented to the Commonwealth Tertiary
86. Arguably, these concerns are mitigated by the fact that all PCLL courses are monitored by
the Law Society, whose external examiners vet the distinction, borderline, and failed exam
scripts each year. Consequently, the law schools do not have unlimited discretion to run the
PCLL and determine who should pass.
87. JoinT SuBmiSSion, supra note 52, para. 30.
Legal Education, Practice Skills, and Pathways to Admission
230 Journal of Legal Education
Education Committee in 1985.
88
This report is said to have had a considerable
impact in terms of generating “critical reflection on the nature and content of
law courses and a commitment to skills development and quality teaching.”
89
In 1999, the Australian Law Reform Commission (ALRC) issued a discussion
paper on the review of the federal civil justice system,
90
which noted that
there was a “trend towards increasing the proportion of time and resources
devoted to ‘professional skills training,’ whether through clinical or classroom
based methods” and recommended that “consideration [be] given to the
articulation of clinical and skills training programs at the undergraduate
level with subsequent [practical legal training (PLT)] programs—and, indeed,
whether an expansion of the role of university PLT courses might obviate the
need for a separate PLT stage.”
91
In 2000, the ALRC report that followed
recommended that “[i]n addition to the study of core areas of substantive
law, university legal education in Australia should involve the development of
high level professional skills and a deep appreciation of ethical standards and
professional responsibility.”
92
As noted by the ALRC in its Report 89 of 2000:
Practical legal training (PLT) has largely been the preserve of the profession,
whether delivered directly through articled clerkships (for solicitors) or
pupillage programs (for barristers), or through specially designed institutional
courses of instruction, such as those mounted by the College of Law in New
South Wales and the Leo Cussen Institute in Victoria. Beginning in the 1970s,
some of these PLT institutions affiliated with universities—at least in part
to take advantage of Commonwealth funding for universities and students.
More recently, a number of university law schools have moved into the direct
provision of PLT (in competition with the traditional providers), mainly in
the form of ‘add-on’ programs available after the completion of LLB studies,
but sometimes integrated within the basic law degree program. Motivation
for this move is mixed—in part, it is driven by the desire to provide a service
to existing students as well to attract new students; in part, by the imperatives
of federal arrangements; and in part by an interest in experimenting with new
pedagogical approaches.
93
88. Chief Justice Robert French AC, Legal Education in Australia—A Never Ending Story, auSTRaLaSian
Law TeacheRS’ aSSociaTion confeRence 19-21 (July 4, 2011), http://www.hcourt.gov.au/
assets/publications/speeches/current-justices/frenchcj/frenchcj04july11.pdf.
89. Id. at 21.
90. Review of the Federal Civil Justice System, auSTRaLian Law RefoRm commiSSion (July 19, 1999),
http://www.alrc.gov.au/dp-62.
91. Id. at paras. 3.16 & 3.48.
92. Managing Justice: A Review of the Federal Civil Justice System - Report 89, auSTRaLian Law RefoRm
commiSSion para. 2 (Feb. 17, 2000), http://www.alrc.gov.au/report-89.
93. Id. at para. 2.9 (citations omitted).
231
The traditional system of “articled clerkships” was abandoned in Victoria in
2008, when the traineeship model was introduced.
94
This followed a review of
legal education by the Department of Justice in Victoria, which recommended
that “trainees be required to undergo a period of formalised practical legal
training (PLT), in addition to workplace components.”
95
In Australia, the
pathway to admission is now as follows, with the supervised legal practice
period that is now required by statute effectively replacing the traditional
“articled clerkships”:
96
Criticism has been levelled that Australia’s current academic requirements,
which are designed around the Priestley Eleven core subjects,
97
“stultify law
curricula by discouraging innovation, limiting student choice and leaving
little teaching time available for developing lawyering skills and professional
values.”
98
Further, as noted by the Chief Justice of the High Court of Australia,
94. Gaye T. Lansdell, Have We “Pushed the Boat out too Far” in Providing Online Practical Legal Training?
A Guide to Best Practices for Future Programs, 19 LegaL educ. Rev. 149 (2009). Lansdell queries
the adoption of online PLT courses and suggests that “that a blended design, with a
combination of online components supplemented with regular face-to-face sessions and
feedback on assessment tasks, is required to instil the necessary professional legal skills and
values.” Id. at 150.
95. Lansdell, supra note 94, at 149. The report is also known as the “Campbell Report.” Susan
Campbell, Review of Legal Education Report: Pre-Admission and Continuing Legal Education (2006). For
a background to the repost, see also National Uniform Law Legal Services Council Admissions Committee,
Submission in Relation to Proposed Admission Rules,
The coLLege of Law (Jan. 30, 2015), which
states in part “[t]he Campbell Report recommended that the then system of articles should
be abolished but concluded nonetheless that good quality workplace experience was still
the best method for equipping a person for legal practice. It recommended the adoption of
a new system of traineeships based on a then recently introduced Queensland model which
made an attempt to incorporate a reliable method of assuring consistency of standards and
outcomes.” Id. at 5.
96. Recent concerns have been expressed about the workplace component for PLT programs
and the lack of structured arrangements for this. See Jeff Giddings and Michael McNamara,
Preparing Future Generations of Lawyers for Legal Practice: What’s Supervision Got to Do With It? 37
u.n.S.w. L.J. 1226 (2014).
97. Eleven compulsory areas of knowledge were identified in a discussion paper written by
Justice Priestley in 1992. See French, supra note 88, at 21-22. The eleven areas are as follows:
criminal law and procedure, torts, contract, property (including Torrens system land), equity
(including trusts), administrative law, federal and state constitutional law, civil procedure,
evidence, company law and professional conduct (including basic trust accounting).
“Admitting authorities in Australia subsequently adopted the Priestley Eleven as the basis
of the academic component of the legal education required for admission.” Id. at 22.
98. Rethinking Academic Requirements for Admission,
Law admiSSion conSuLTaTive commiTTee 21 (26
Legal Education, Practice Skills, and Pathways to Admission
232 Journal of Legal Education
Chief Justice French, the approach “has been compared unfavourably with
the approach taken by the McCrate Report, commissioned by the American
Bar Association in 1992” on the basis that the latter approach was “oriented
around what lawyers need to do, while the Australian position was said to
be anchored around outmoded notions of what lawyers need to know
.
”
99
In
2010, the Law Admissions Consultative Committee released a paper in which
it recommended that “[i]n addition to the study of core areas of substantive
law, university legal education in Australia should involve the development of
high level professional skills and a deep appreciation of ethical standards and
professional responsibility.”
100
Before the most recent reforms, there had been debate in Australia over
the possibility of introducing a bar examination. Some writers have noted the
limited benefits of an American-style bar examination. Garkawe, for example,
has noted that the basic argument behind an American-style bar exam is that
it is administered by a body independent of the law schools and thus assures
the public of the competency of admitted graduates.
101
However, Garkawe
suggests that there is little empirical evidence that those who pass the bar in
America are necessarily “better lawyers” than those who have difficulty passing
the bar. In addition, Garkawe also argues that the bar has had a “negative
effect on the quality of American legal education, acting as a discouragement
to diversity and the incorporation of greater critical and theoretical approaches
to the law.”
102
Instead, Garkawe argues for an American-style law school
accreditation system as a form of external control.
103
By contrast, in advocating that a bar examination should be introduced in
New South Wales, Thompson has argued that the proliferation of law schools
risks a downward shift in the quality of graduates and that the risk is limited
to the extent that the legal profession “screens out underqualified law school
graduates.”
104
The challenge with professional training programs, Thompson
argues, is that they “do not provide an effective screen of core analytical skills
for the legal profession.”
105
Further, “[w]hile certain professional coaching
schools distort the effectiveness of the [bar] exam, the exam nonetheless weeds
February 2010), http://www.lawcouncil.asn.au/LACC/images/pdfs/Re-thinkingAcademic
RequirementsforAdmission.pdf.
99. French, supra note 88, at 23 (referring to the Australian Law Reform Commission (‘ALRC’)
characterization in its Discussion Paper Number 92).
100. French, supra note 88, at 25 (referring to the ALRC’s Report 89, supra note 92).
101. Sam Garkawe, The Proliferation of Law Schools in Australia–Should Australia Adopt the American Bar
Exam Model? 13 J. PRof. LegaL educ. 23, 37 (1995).
102. Id. at 37.
103. Id. at 38.
104. Joshua Thompson, Benefits of a Bar Exam, L. Soc. J. 58, 58 (2003).
105. Id.
233
out the weakest performers….”
106
Thompson points to the experience in the
United States, where “the bar exam is generally considered by the American
profession to be even-handed, consistent, challenging, and fundamentally
meritocratic….”
107
Australia represents an interesting contrast to Singapore and Hong Kong
insofar as there is essentially no gatekeeping except, perhaps, admission to
the law degree itself. And even this does not represent much of a gate in view
of the proliferation of law schools over the past two decades and the relative
ease with which students can enroll in law degrees. Like Singapore, however,
Australia has experienced calls for practice skills to be strengthened within the
law school curriculum.
VI. Comparative Analysis and Conclusion
The experience in the three jurisdictions under examination reveals the
existence of three pathways to admission:
• A bar exam with a compulsory preparatory course (Singapore);
• A professional admission course, entry to which is subject to
quotas and competitive enrollment (Hong Kong);
• A practical legal training (PLT) course that provides open access
to all law graduates (Australia).
108
An important point of distinction between Australia and the other two
jurisdictions is that a second gatekeeper—namely, a second gatekeeper after
the law degree—exists in both Singapore and Hong Kong. In Singapore, the
preparatory course and the bar examination serve as the second gatekeeper.
This is because admission to the preparatory course is limited to domestic
students with the prescribed grade of second class honors or above and to
foreign students who have graduated with law degrees from recognized
foreign universities. In addition, the bar examination is rigorous, and not all
candidates are successful in passing it. In Hong Kong, the pass rate for the
PCLL is relatively high. However, a second gatekeeper exists by virtue of the
fact that the numbers of entrants to the PCLL is capped and, consequently,
the law schools impose minimum thresholds for entry. By contrast, all law
graduates in Australia are able to enroll in a PLT course—provided either by
the law schools themselves or by independent vocational training providers—
and gain admission after completing the course. In this sense, the focus of
the course is on preparing graduates for practice rather than in assessing
competence or quality.
106. Id.
107. Id.
108. A similar approach is adopted in the U.K.
Legal Education, Practice Skills, and Pathways to Admission
234 Journal of Legal Education
Interesting parallels exist between the former Practical Course in Law (PCL)
in Singapore and the concerns regarding the current PCLL in Hong Kong.
First, there is evidence that the introduction of a bar exam in Singapore was
driven partly by the inadequacies of the PCL in terms of providing graduates
with the necessary practice skills and partly by criticism that it was just an
extension of the academic degree. Second, concerns were expressed about
having the admission course administered by the law schools and the conflict
of interest that this is said to create.
All three jurisdictions require workplace experience. In the case of Singapore
and Hong Kong, such workplace experience is required before admission to
practice. In Australia, on the other hand, the workplace experience follows
admission to practice, but a period of supervised legal practice is required to
be completed before a lawyer has an unlimited practicing certificate.
The comparative analysis raises some interesting questions. A central
question is whether professional admission courses should serve as a gatekeeper
in terms of assuring quality and competence or whether the professional
admission courses should serve simply as preparatory courses for admission to
the legal profession as in Australia. Related to this question is the fundamental
question of whether the state or the market should regulate the supply of
lawyers. Each approach has its perceived disadvantages. The first approach
has a tendency to limit the number of entrants into the market and gives rise
to concerns about access and protectionism. The second approach gives rise
to concerns about quality and competence and also the limited opportunities
for those who are actually admitted to practice. Arguably, the concern over
limited job opportunities becomes greater as law schools proliferate, as
opportunities for fresh law graduates in practice become more limited, and as
the legal profession encounters challenges in terms of retaining good lawyers
and dealing with increasing competitive pressures in the market.
Interestingly, the current debate in Hong Kong over the introduction of
the CEE reflects tensions that are pulling in both directions, as reflected in
the arguments concerning the need to increase competency and quality while
at the same time achieving greater access for law graduates.
109
A number of
interesting countervailing trends and contradictions emerge from the above
analysis. First, although in all three jurisdictions the law degree has become
more of a liberal arts degree than a professional degree over the past two decades
or so and has become disconnected from legal practice in many respects, the
legal profession has increasing expectations that the law degree will fulfill its
109. To some extent, this reflects broader issues about how lawyers are regulated and whether
they should be perceived as service providers or members of a special profession that owes
duties to society. See Godwin, Barriers, supra note 9. It also reflects calls in Singapore for
legal education to “cultivate healthy attitudes towards community service” and the assertion
that the profession “is a common calling—not a trade.” Lim & Ong, supra note 16, at 87.
Irrespective of the perceived role of lawyers in society, a reality that exists in all of the
jurisdictions examined in this paper is that an increasing number of local and international
law firms are employing foreign lawyers who do not have the qualification to practice local
law but act as consultants or paralegals to advise on cross-border transactions.
235
function as a professional degree and as a means of preparing graduates for
practice. As noted above, this results partly from the increasingly competitive
nature of the profession, the decrease in the opportunities for junior lawyers
to receive on-the-job training, and the concomitant need for junior lawyers to
develop practice skills sooner.
Second, although the past two decades or so have seen a significant
increase in the rigor and systemization of professional training courses
before admission, the perceived need for law schools to incorporate practice
skills into the curriculum is increasing. As reflected in the discussion
in Part II, this is in large part a result of the expectations that the legal
profession has of the academic degree. It may also reflect difficulties in
distinguishing between the law degree and the professional training courses.
Irrespective of the rigor with which professional or vocational training is
delivered, we would argue that there is more that could be done in terms of
incorporating practice skills into the curriculum and preparing graduates
for practice as suggested by the recent Report of the 4
th
Committee on the
Supply of Lawyers in Singapore. To a large extent, this would involve law
schools teaching substantive law within a broader practice-based context.
Third, although markets and governments around the world increasingly
expect the legal profession to operate as a regular service industry,
countervailing forces exist in some jurisdictions as the legal profession adheres
to the traditional view of itself as a profession or vocation and to the notion
that admission numbers should be restricted to achieve minimum competency
and quality standards and protect the public interest. In jurisdictions such as
Singapore and Hong Kong, this has led to a view by some that the bar exam
should perform the function of a second gatekeeper.
Finally, competing priorities often come into play in relation to admission
requirements, including the need, on the one hand, for the process to meet
access requirements and, on the other hand, to ensure that the appropriate
levels of competence and quality are achieved. The first need (i.e., the access
need) works against protectionism and in favor of allowing the market to
regulate numbers. The second need (i.e., the need to achieve the appropriate
levels of competence and quality) works in favor of treating the legal profession
as a special profession and in favor of the argument that a second gatekeeper is
appropriate. The challenge with the concept of a second gatekeeper, however,
is that it appears to run counter to the globalization of legal education and
legal practice.
What does all of this mean for legal education? As Professor Simon
Chesterman, Dean of the National University of Singapore Faculty of Law,
has noted, “[l]egal education has always borne an ambiguous relationship to
the practice of law.”
110
At the very least, we would suggest that legal education
should not be disconnected from legal practice in its myriad forms and
contexts. In addition, while it is important for law schools to strengthen the
110. Simon Chesterman, The Globalisation of Legal Education, 2008 Sing. J. Leg. STud. 58, 59 (2003).
Legal Education, Practice Skills, and Pathways to Admission
236 Journal of Legal Education
transactional and clinical focus, it is also critical for them to teach substantive
law, to strengthen general skills such as analysis, problem-solving and research,
and also to maintain the availability of subjects that have a close relevance to
legal practice.
In many ways, all of this is an argument for law schools to continue to do
what they have always done best: namely, teaching legal doctrine in a rigorous
way that helps student develop strong analytical and problem-solving skills
across all subjects within a curriculum that is supplemented by a balance of, on
the one hand, transactional and clinical law subjects, and, on the other hand,
critical legal theory.
