By Afe Babalola
Last week, I examined the practice in England, India and Canada. In this edition, I will deal with the practice in USA, Australia and Kenya.
The United States of America: Similar to the practice in England and Canada, there is no central “American Law School” where all law graduates converge for 12 months for vocational bar training and examination.
Although licensing requirements vary from one State to the other, in all States in the United States of America, the traditional route to become a lawyer is to first get an undergraduate degree in any discipline, then take the Law School Admission Test, LSAT, to be admitted to study law, obtain a Bachelor of Laws, LL.B, or Juris Doctor, JD, degree from an American Bar Association approved faculty of law, and then pass a bar licensing examination administered by a state bar.
In the State of New York for example, the New York State Bar Exam is administered twice a year by the New York State Board of Law Examiners. This standardised bar examination is based entirely on self-study and is designed to test knowledge and skills that every lawyer should have before becoming licensed to practice law. The examinations are often administered in-person at licensed test sites.
All applicants who pass the bar examination must then take and pass the Multistate Professional Responsibility Examination, MPRE, administered by the National Conference of Bar Examiners, NCBE, before they may be admitted to practice law. Candidates self-prepare for the Bar examination and the MPRE by reviewing the curriculum and materials provided by the examiners, and then undertake the prescribed tests.
A bar aspirant that has passed the Bar exam and the MPRE, completed the 6–9 month articling (pupillage) term and satisfies good character and fitness requirements, is deemed eligible to be called to the Bar. The bar licensing system in the United States enables aspirants to self-prepare for bar examinations without the need to attend any central institution.
Rather than incurring the additional costs of building and maintaining a central law school, Bar Examiners in the US offer a decentralized system of vocational bar training that provide aspirants with the option to either self-study or enroll in bar preparation courses with private institutions such as KAPLAN and BARBRI that lessons and practice materials for those who require coaching and can afford the associated costs.
Australia: Similar to the practice in England, Canada and the US, there is no central “Australian Law School” where all law graduates converge for 12 months for vocational bar training and examination. Although licensing requirements vary from one State to the other, in all States in Australia, the traditional route to become a lawyer is to first obtain a Bachelor of Laws degree, and then complete a prescribed Practical Legal Training, PLT, course conducted by a licensed PLT service provider accredited by the Board.
The accredited service providers run the PLT course for three months (full time) or eight months (part-time) and then conduct assessment examination for candidates. Alternatively, a law graduate may satisfy the PLT requirement through supervised legal training in a workplace for a period of not less than 12 months, under a training plan approved by the Board, which the Board determines adequately provides for the trainee to satisfy the requirements of legal training. Upon satisfying the PLT requirement and meeting the good character and fitness requirements, an aspirant is deemed eligible to be admitted as an Australian lawyer by the Supreme Court of a state in Australia.
Upon being admitted as an Australian lawyer, the lawyer must then seek a practising certificate to practice as a barrister from the Bar Association or as a solicitor from the Law Society. The core requirements for the issue of a practising certificate for solicitors are: to have in place professional indemnity insurance, to undertake and complete mandatory continuing legal education for the year, and to produce a declaration that the applicant is a fit and proper person.
Newly licensed solicitors typically receive a restricted license which makes it mandatory to work under a principal for the first two years of being admitted. This is to prevent a situation in which new lawyers, in their initial two years of practice and with no knowledge of practice, will rush to set up their own practice without a period of supervision and training.
An Australian lawyer willing to practice as a barrister goes through a different licensing system. After being admitted as a lawyer, an aspiring barrister must pass the prescribed Bar Examination (with a mark of 75 percent in the two exam papers governing practice and procedure, ethics and evidence) and then enrol in the Bar Practice Course, a 4-6 weeks practical vocational training course which is administered on a full time basis by the respective Bar Association.
The Bar Practice Course is held twice per year and it emphasises the advanced advocacy and mediation skills required to practice as a barrister. In the first year of receiving practising certificate, a barrister must undertake a “reading period” during which the new wigs may not appear in court alone without a principal. The barrister becomes eligible to receive an unrestricted practicing certificate from their second year onwards.
It is clear from the foregoing that the streamlined and decentralized licensing system in Australia enables aspirants to prepare for, and complete PLT examinations, by selecting any of the licensed PLT centers of their choice based on cost, reputation, and geographical location of the preferred training center.
Also, rather than incurring the additional costs of building and maintaining a central law school, the Bar Associations play the role of a regulator that accredits and maintains rigorous standards for private licensed centres to ensure that the vocational training provided are of the highest quality. This approach not only reduces the logistical challenges associated with moving to different parts of the country for the purpose of vocational training, it also encourages competition in the provision of legal education services by the accredited PLT centres.
Kenya: Earlier this year, Kenya joined the league of countries to license private service providers to conduct the bar training programme, known as the Advocates Training Programme, ATP, when the parliament recently passed the Legal Education (Amendment) Bill of 2022. Prior to the Bill, all law graduates in Kenya had to enrol in a one-year ATP course offered solely by the centralised Kenya School of Law, KSL.
However, space, infrastructure, and funding constraints, coupled with the dearth of qualified teachers, that bedevilled the Kenya School of Law over the years saw many law graduates being unable to gain admission to complete their bar training courses which delayed their admission to the Bar for several years. To address this problem, Kenya decided to reform its bar licensing system to reduce the sole control of the Kenya School of Law in administering the ATP.
Kenya’s Legal Education (Amendment) Bill of 2022 now makes it possible for the Council of Legal Education in Kenya to accredit other legal education providers and private institutions to offer relevant training, courses and examinations required for the purpose of licensing of the Advocates Training Programme.
The Council’s role is to set and enforce standards relating to the accreditation of legal education providers for the purposes of licensing; curricula and mode of instruction; mode and quality of examinations; harmonization of legal education programmes; and monitoring and evaluation of legal education providers and programmes.
This reform has been widely hailed in Kenya for widening access to high quality legal education and for opening up competitive opportunities that will ensure that private service providers offer innovative and technology driven legal education to aspiring lawyers in Kenya in line with international best practices.