I don’t practise law and I’m not an American so you could be forgiven for wondering how I managed to find myself writing a piece for the ABA Journal Legal Rebels project. Twitter. The power of social media.

I don’t practise law and I’m not an American so you could be forgiven for wondering how I managed to find myself writing a piece for the ABA Journal Legal Rebels project. Twitter. The power of social media.I met Molly McDonough through Twitter and even after reviewing some of my more bizarre tweets in the 28,000 I have done in just 16 months (She has also read my blog), she invited me to submit a piece. Molly can be said to be Volens and I pray in aid the old maxim beloved of personal injury lawyers throughout the common law world – volenti non fit injuria.

The title of my piece comes from Sir Claus Moser’s well known aphorism “Education costs money, but then so does ignorance.” –an appropriate theme for my contribution.

We have too many lawyers and we have too many law schools taking on too many students.

This last statement is pregnant with many possibilities and is intended to provoke and, possibly, irritate those with vested interests in the education business, academics at traditional law schools and may even irritate a few practising lawyers as well. Be that as it may, as we say over here when we wish to push a point fearlessly.

Let me explain my view on this.

The Oversupply of Law Students

I’ll start with a fairly vivid illustration. In the United Kingdom we have 1749 bar students studying this year for the Bar Vocational Course with a view to practising as a barrister at the Bar of England & Wales. (Scotland has a separate legal system as many of you will know, if you didn’t know before, following the recent Al-Megrahi case) To practise as a barrister in England & Wales, apart from eating 12 dinners, a prospective barrister is required to pass the Bar examination and complete 12 months of pupillage in Chambers – learning the ropes, under the supervision of a suitably qualified experienced barrister. Only then can the newly qualified barrister take instructions from a solicitor without formal supervision and go on to build a practice. Finding a pupillage isn’t easy.

Competition is fierce. There are only 550-550 pupillages a year. But then the problem gets worse – because to practise in Chambers, the pupil needs to be ‘taken on’ as a tenant in Chambers and there are only 225-250 tenancies a year. It is a 5:1 attrition ratio. The cost of the Bar Vocational Course is £13000-14800, depending on the law school. Add to that subsistence living costs, and the prospective barrister is looking at £25,000 worth of debt – to which must be added debt built up from studying for a three year law degree or a three year non-law degree and the cost of a one year Graduate Conversion Course. Estimates vary – but it has been estimated that many prospective lawyers – barristers and solicitors who are not fortunate in getting sponsorship or scholarships – start life with a debt of £30-50,000. It may even be higher.

I read recently in the ABA Journal that young American lawyers start their careers with $91,000 (or even more) worth of debt. I am told that there is a chronic over supply of lawyers in the US as well. While the statistics for the solicitors side of the profession are not so severe, there is still an oversupply of students for the number of training contracts (two years in the case of a solicitor) and not all students completing their training contract will be taken on as associates.

It is, however, right and proper that entry to the legal profession in our common law based jurisdictions should be demanding and that access to the profession should be diverse and open. Law has always been a competitive profession and if standards are to be maintained – and this is all the more important in the modern world - fierce competition will benefit the public interest in terms of the quality of legal services. I do not have a major issue with this aspect of legal education.

The Unsuitable Law Student

I fear, however, that the over supply problem is now reaching a point where many students going into law have absolutely no prospect of practising law , not because of the lack of work or an oversupply issue but, because they do not have the intellectual ability or other qualities needed by law firms and they are, therefore, unemployable ab initio. This raises quite demanding moral issues. The Bar Standards Board in England & Wales tried to address this issue, not by placing a cap on numbers entering the profession, but by requiring prospective barristers to sit an aptitude test. This was not acceptable to our Office of Fair Trading. It was deemed anti-competitive.

The solution now being looked at is to make the Bar examination more difficult, not at the point of entry, but at the point of exit. It will be more difficult to pass the examination. This is, in my view, the right policy – for it is not anti-competitive to demand high standards from prospective members of the profession and has the added benefit of raising the standard of young lawyer coming into the market and that can only be of benefit to the client end-user and the public interest.

I have talked privately to regulators, judges, practitioners and academics about this issue. There is a general feeling that there are far too many students with no prospect at all of succeeding, who should not even be permitted to go to law school, let alone join the profession.

One regulator I spoke with actually told me that it would be a “kindness to tell the student this before they start to spend serious money.” This reminded me of Professor Kingsfield in the classic film The Paper Chase where he says to a student “Mister Hart, here is a dime. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer.”

The representative sample of experienced lawyers I spoke to, albeit a modest number, expressed this view because some students simply do not have the intellectual ability or qualities needed to be employed in a profession where standards are high and may well be getting higher. This, they say, is confirmed by the failure of many students to get work, and is not simply an issue of a downturn in demand because of recent turmoil in the global economy. They will not say this in public, of course – not in our politically correct’ world on this side of the Atlantic.

I cannot, of course, comment on the position on your side – save to say that I have anecdotal ‘evidence’ that a similar problem has arisen.

A Duty of Care?

I leave you with the thought that perhaps we need to address the issue of the oversupply of unsuitable candidates and focus attention on our law schools for taking on students who have little chance of success. It is not good enough to simply cite market forces and freedom of choice. I believe that law schools now have a moral duty to be very clear in their warnings to students about the realities of the profession and should be under a duty to assess, more closely and with reasonable care, the chances of each student enjoying a reasonable prospect of getting work as a lawyer or paralegal afterwards. I am not suggesting that law schools act as formal or official gatekeepers, but I do suggest that be under a legal duty to give a very fair and objective assessment of aptitude and a clear unequivocal health warning about the job market before taking the student on.

The profession can, of course, assist here by providing detailed statistics – as indeed our Law Society did this summer when they issued an ‘informal warning’ to students to think carefully about their decision to pursue a career in law and our Bar Standards Board actually requires law schools to issue in relation to the Bar in England & Wales a very clear warning about the realities of getting pupillage and a tenancy. (Scotland has a completely separate legal system and I make no reference to their position in this piece).

What worries me is the possibility that law schools, both public and privately owned, are attracted by the very high revenues and are taking on students who have no prospect of success. Perhaps recruitment of law students by law schools is moving dangerously close, morally, to a position – with students of lesser ability – where they are, in effect, saying the legal education equivalent of – ‘We supply you with drugs/arms, but we are not responsible for what you do with them?’ This cannot be right nor go on unregulated.

It won’t be long before a student in the U.K., following a recent U.S. example, sues a law school for negligence – and they may well win if the claim is framed properly and argued persuasively.

Education does cost money and in some cases ignorance is not bliss. It would serve the interests of the profession if we were more honest at the entry stage and raised the bar so that those with no real prospect of being employed – through lack of ability – do not even begin to spend their money on their law studies. Perhaps I should get my coat now…and leave?

Charon QC, aka Mike Semple Piggot, is an academic lawyer and founder of BPP Law School with BPP Holdings PLC in the 1990s – a law school now owned by U.S. firm Apollo, the people behind The University of Phoenix. BPP Law School is Britain’s second largest ‘vocational’ law school and enjoys degree awarding powers. He works as a consultant and runs the online daily magazine Insite Law.