1.1 Introduction
The legal profession has always relied on learning by doing in the workplace, and the supervision of work completed by novice lawyers is an important process in a range of legal practice environments. While supervision arrangements have always been central to legal education and legal practice, the importance of supervising novice lawyers has increased in recent times, to the extent that it has been described as an issue which ‘lies at the heart, and the future, of the profession.’1
The legal education framework is perpetually on the reform agenda, amidst ongoing concerns regarding newly qualified lawyers’ preparedness for legal practice. Concerns about legal education and the transition to practice are part of broader trends in society where the status quo, in a range of disciplines, is that professional education is split between universities and workplace settings.2
Supervision is also relevant to a range of legal practice issues such as complaints management,3 workplace culture,4 ethical infrastructures,5 regulating law firm management,6 and problems associated with billable hour regimes.7 The relevance of supervision to legal practice also emerges out of broader critiques regarding the commercialisation of law. In this regard, Rhode has commented that ‘experienced lawyers who are under growing pressure to generate business and billable hours often have inadequate time or incentive to train junior colleagues.’8
It is perhaps then unsurprising that there are ongoing concerns regarding the mental health and well-being of lawyers, especially junior practitioners, and that supervision is relevant to this as well.9 This situation is complicated by a rapidly changing practice environment, which is driven by disruptive innovation and where lawyers require a new range of skills that may be better developed in legal practice.10 If these skills are to be developed in the practice environment, then supervision (especially during the early years of practice) is an important forum for that to occur.
Despite supervision being central to legal education and legal practice the scholarly literature on the legal profession and the practice of law has not closely analysed the processes underpinning supervision generally, or the purpose and structure of supervision arrangements immediately after admission.
Section 1.2 expands on these opening comments and describes how this book addresses the legal profession’s knowledge gap regarding supervision. Section 1.3 then explains the importance of drawing lessons from clinical legal education and other professional disciplines. Section 1.4 outlines the structure of this book with an overview of Chapters 2–8.
1.2 The Legal Profession’s Knowledge Gap
The academic literature on supervision in legal practice is very underdeveloped. There is an absence of any clear theory underpinning supervision as an activity in legal practice (Sect. 1.2.1) and there is a dearth of empirical research informing supervision processes (Sect. 1.2.2).
1.2.1 Absence of Theory
Scholars frequently refer to supervision in the context of other issues facing the legal profession but do so without paying close attention to the nature and purpose of supervision, or what processes make it effective. Arguably, some of the clinical legal education literature serves as an exception. However, a close inspection of that literature reveals that supervision in clinical legal education is contextually different from supervision in day-to-day legal practice.11
Supervision was historically,12 and continues to be, a distinctive and important aspect of the legal education framework. This is especially so in jurisdictions which are steeped in the British tradition.13 In these educational contexts, supervision has been described vaguely in terms of needing to be ‘close’,14 ‘personal’,15 and ‘direct’.16 These types of comments are not supported by any pre-existing conceptual framework underpinning supervision as an activity in legal practice. In particular, conspicuously missing from these discussions, is any clear definition of “supervision” or any description of what makes it effective. Remarkably, there is no academic literature at all, which specifically examines the role of supervision as a transitional stage of legal education for novice lawyers.
Supervision is generally positioned as an important process underlying the structures used by traditional law firms to manage their work. These structures rely on senior lawyers supervising legal work performed by junior lawyers (as well as non-lawyers) in a cost-effective way. However, the literature covering law firm’s internal structures and processes seems to assume that supervision simply involves monitoring output and checking final work.17 This is despite there being no evidence-base justifying, or determining the effectiveness of, these processes.
In addition, supervision emerges as an important underlying feature of many aspects of the changing legal services sector, which is characterised by a range of factors including specialisation, globalisation, legal process outsourcing and disruptive technology. For example, supervision has been identified as a relevant factor in maintaining the quality of specialised legal work; in particular, in some instances ‘stronger supervision is preferable’.18
Unfortunately, it is not clear what “strong”, or for that matter “weak”, supervision actually entails in terms of its functions or what processes may make it effective. This is another example of commentary on supervision that could be strengthened by an underlying conception of supervision. In the context of legal process outsourcing, supervision has been flagged as a concern.19 Again, this is done without any meaningful consideration of the nature, purpose, and processes underpinning supervision. Rather, supervision is positioned in this new environment as a compliance issue, best dealt with by a cautionary doctrinal analysis of the relevant professional conduct rules and potential liability in tort.20
Emerging legal technologies also generate a number of new supervisory issues, such as supervising technological processes that automate legal document production,21 and supervising the interpersonal aspects of legal practice. The latter is particularly important because providing ‘relational-security’ to clients is predicted to become an increasingly important aspect of legal practice as it is disrupted by legal technologies.22 Legal practitioners are beginning to grapple with these issues. However, they are doing so without any firm knowledge base of supervision.
A common feature of professional publications about supervision is the “pigeon-holing” of supervision, as merely being an aspect of a lawyers’ professional responsibility obligations. In this sense, there is a tendency for the analysis of supervision to be myopic with a focus on legal rules.23 Further, supervision is sometimes positioned as being an important aspect of risk management and avoiding malpractice/professional indemnity claims.24 In these contexts, there is a general failure to look past the wording of the rules in order to understand the functions of supervision and effective supervisory practices. Similarly, there is also a tendency for practising lawyers to take a parochial attitude towar...