Continuous Legal Education.
The position in Namibia may not be so unique; to become a
legal practitioner the LLB degree is the first step. Since the Advocates Act
and the Attorneys Act was repealed in 1996, a person with an LLB degree cannot
enter the legal profession without first going through practical training. This
practical training is known as JTC programme [Justice Training Centre] which
requires that the candidate attend to lectures and passing an examination while
also being attached to a law firm. In theory, this can be done within a year,
if the candidate attend 80% of each of the eleven subjects lectured, do the required
hours in attachment and submit a diary to prove what exposure the candidate
underwent, pass the examinations and the Board of Legal Education gets its management
administration in line to reflect some level of efficiency to finalise the
certificates within a month of two after the examination results are known.
Historically, a person with an LLB degree was able to apply
for admission as advocate and enter practice directly with his/her degree. In
Namibia this is no longer possible.
Once admitted as legal practitioner the person can practice
as the traditional attorney or advocate, however as in most parts of Southern
Africa, the BAR, i.e. the Association of Advocate is a voluntary association.
To become such a member thereof, a legal practitioner must apply and meet the requirements
the association set for entry into the association, which include the tradition
of pupillage system.
The question is, looking as legal education, why is it that
members of associations of advocates are generally respected as people who know
what they are doing and are seen as experts, regardless of years of experience?
In my mind, the associations are doing something right and
that is the pupillage system. Remember, historically advocates are experts in
litigation and giving legal opinions. The pupillage system is a one-on-one
apprenticeship model. The pupil (legal practitioner in-training) closely
observes his master (experienced advocate) as a trusted mentor. The pupil does
not receive remuneration and cannot charge fees, but assists and shadows the master
for a period of at least six months and then successfully complete the
examinations. The pupil’s goal is to develop a parallel practice one day and
received individual training while the association ensures that their members
have a minimum skill level to function as an advocate. The pupil, inter alia,
has to work through a reading list [case law and handbooks] ensuring knowledge
of the latest law pertaining to litigation is gathered.
To become a legal practitioner a LLB graduate must go through
the JTC programme – period of practical training and lectures - the candidate
legal practitioner is attached to a firm, receive a salary and as a result
become a cost centre and the law firm usually would like to see that the
investment [salary] has a financial return, i.e. the business must make money
and consequently the services of the candidate are charged to clients. It is
common, and if I am wrong a would like to be convinced thereof, that the
candidates, once admitted, is not sufficiently prepared for legal practice,
even though he/she met all the requirements and was admitted by the High Court
of Namibia to practice.
The legal practitioner in practice charge by the hour. The
legal practitioner as principal to whom the candidate is attached, spend time guiding
and directing the candidate, which hours are not chargeable. It seems that some
principals do not do so, assuming the “JTC” programme should attend to such
guidance, perhaps a over ambitious expectation. If time is spent doing so, the
principals invest time and effort, how frustrating it may be, ends up with a
professional that is trusted to become a knowledgeable and skilled lawyer in
the firm and the principal further wants to see a financial return on investment
and the newly admitted legal practitioner receive a salary below expectations,
in which case the firm does not retain the new professional and the next
candidate will probably be treated with less commitment.
I think the pupillage system; a working successful model
should be adapted to the JTC system. The financial obligations and commitment
of obtaining an LLB degree and then another period of little or no income is
not well received by the average person and remain an obstacle, similar to any
professional education programme. The financial aspect is a hurdle, but the
quality of education and training should not be sacrificed. The financial hurdle
is a completed different aspect to the content and expectations of the
educational system, with which I do not intend to deal herein.
Legal practitioners are however to some extend generalists
while advocates are specialised in litigation. To take a newly admitted
generalist to expert level; experience, exposure and in-house training are needed.
There is no doubt that scaling in-house or on-going training will address the learning
deficits accompanied by an increasing requirement of senior partners’ time.
Making a bold statement that; there is a training deficit,
requires that the initial expectations and promises be quantified.
What is the purpose of the LLB degree?
It is my opinion, that universities produce people with a
relative knowledge of the substantive law, without any compulsory practical
experience.
What is the purpose of the JTC programme?
The JTC is to supplement the LLB degree with practical
experience and prepare a person for legal practice.
What is the law student’s expectation when the LLB degree
has been obtained?
Generally the graduate expects to enter legal practice with
ease as soon as possible and receive an above average income as return of
investing years of study; to be part of a business and not knowing what is the
difference between a profession and a business.
To run a law firm, requires some business acumen, understanding
how a business plan should be prepared or developed, be able to do basic accounting,
cash flow forecasts and management accounts and to be able to use in delivering
services. Shockingly, I do not see compulsory courses at either university level
or JTC addressing business skills and computer skills, which are undoubtedly part
of today’s legal practice. The obvious next question is: Who was responsible to
teach the student those skills?
The growing continuously changing positive law has always
been fast changing as legislation is promulgated regularly and the High Court
delivers judgments daily. 30 years ago the information technology was slow and
it took weeks if not months for the law resources [publications] to reach
practitioners. Today, it is a question of hours and whomever has the best
access, ability and technology, appears to me miles ahead of the rest.
I have a lot to say, but is the situation really so
difficult to address?
In the precedent system we have the law changes daily. The
IT develops rapidly with more and more ways the World Wide Web and use of smart
phones give people access to more information rapidly. It seems the generally
liberal attitude of lawyers tends to be nullified by the traditional-bound
conservative outlook at the content of the law studies, practical training and
principal/candidate transfer of skills and knowledge.
Producing lawyers for the new generation, the content of the
LLB degree, the content and manner of practical training, the identification of
which institution should be responsible for what level of training must be
clarified. Another year of research and committee meetings followed by
proposals and considerations are not the answer.
The legal education should be preparing professionals with realistic
expectations and sufficiently skilled for the real world, now. To research and
debate another couple of years will guarantee that the content and quality of
legal education in three years’ time will be three years behind and three years
out of date, at best.
And that is about what I have to say today.
