The SQE and ethics: STAR lite?

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Guest post by Jane Jarman and Jane Ching, professors at Nottingham Law School

Jane Jarman

The SRA Standards and Regulations 2019 – the STARs – are about to celebrate their first birthday.

Last year, in accordance with the LPC Outcomes 2019, specially amended to accommodate them, they were taught on the legal practice course for the first time. Students working in solicitor-supervised student clinics will have encountered them too.

As well as grappling with the pandemic that has sent much teaching and some assessment online, academics will this year be consolidating their experiences of teaching this new conduct model to the new generation.

They will also have one eye on how the STARs will be treated in the Solicitors Qualifying Examination (SQE) and wondering how to transition from one to the other.

That is an important question because, although the STARs have not fundamentally changed, the teaching and assessment context will be very different.

On the LPC, students must spend some time in a classroom with a solicitor-tutor, and have the opportunity to ask questions and, in some cases, bring with them ethical issues that they have met in the workplace, although they need not yet have set foot in a solicitors’ firm.

It will be possible to study for the SQE, however, not only without having been in a workplace, but without having been in a classroom – online or physical – either. So we do not yet know what other support or discussion students will have had outside the raw and fairly brutal context of the final SQE assessment.

The LPC and SQE are also designed to achieve different results. The LPC outcomes are designed to represent a point two years before qualification. Graduates are expected to be “familiar in general” with the STARs; to “recognise” issues and “understand” the provisions.

Normally they will do so by discussing hypothetical ethical problems. Students in clinics are unlikely to experience the full panoply of the STARs, specifically the code of conduct for firms, unless the clinic is, as it is at Nottingham Law School, an alternative business structure.

Jane Ching

The SQE is, however, pegged to the Statement of Solicitor Competence, that is, to the point of qualification. Some – perhaps many – students will take it earlier than that, but it necessarily assumes more than knowledge, understanding and recognition.

The statement says qualifying solicitors should be “exercising effective judgment” and “resisting pressure to condone, ignore or commit unethical behaviour”, because it assumes the two years of qualifying work experience have been undertaken by then.

In SQE1, these will be assessed by multiple-choice questions (MCQs), and pervasively in SQE2, but as with the LPC, in hypothetical settings. This is a subtle shift in focus but one that will be important for those firms seeking to support colleagues taking the SQE in the future.

The SQE assessment alongside the new model of qualifying work experience raise three issues in relation to the STARs that arise from the interconnected nature of assessment and law firm compliance. They will become even more acute when students do not have the comfort of the initial LPC classroom.

Firstly, the structure of the STARs presents a practical and conceptual difficulty, even on the LPC, by comparison with their predecessors.

The bifurcation of the STARs into the personal and organisational means that the student is confronted with the detailed nature of office life and compliance plans in a context they have never seen, unless, perhaps, they are working part-time or have spent time in a clinic.

There will be a new risk factor in the law firm when the student perceives a difference between work in the office and assessment on the SQE. It is possible that the student will not understand the nuance behind a compliance plan or management decision which has been developed in accordance with the STARS.

It may appear to be “wrong” to the student simply because a written test can only assess what it is feasible to test, which is rarely the whole story and never, of course, the precise story within your organisation.

Secondly, as we move towards the SQE, there is a problem with the assessment vehicle for the STARs. Whilst it is possible to develop MCQ assessments which test knowledge and understanding, the STARs demand that the student can demonstrate the ability to provide evidence of decision making and to fulfil the professional obligations, on an autonomous basis and, as we indicated above, at a standard representing the point of qualification.

A simple MCQ, without more, could signal a bright line approach to compliance at odds with the code. The assessment is just an approximation of the skill required of the practitioner at the point of qualification of “exercising effective judgment” under pressure.

The third question for employers is what, if anything, you can infer from the fact the SQE is placed at a different level in terms of a new recruit’s knowledge, understanding and ability to apply the STARs.

In terms of law firm compliance, in reality, very little: both the LPC and SQE are what they are, and neither is a guarantee of compliant conduct in the context of the STARs. There is a risk that MCQs, at least, will miss some of the complexity and the need to diagnose, justify and document the decision process.

The most significant point, therefore, will be, as it is with the LPC, the extent to which graduates of the SQE are able to use and apply the STARs, not in a classroom, or in a hypothetical situation, but on a rainy Tuesday with a client, or their boss, shouting at them.

The provenance of the popular comment that “you don’t rise to the occasion, you sink to the level of your training” is unclear, but the sentiment is apt. Preparing for that kind of pressure has never been the formal role of the LPC, and it cannot be the role of the SQE, but it is absolutely what is required to reach the STARs.