Supervision of Newly Admitted Practitioners

Supervision of Newly

Admitted Practitioners

Presented by:

Judge Katrina Bochner Master of the Supreme Court of South Australia

Chair, Board of Examiners

&

Michael McNamara Lecturer of Professional Programs Unit,

Flinders University

Thursday 26 October 2017

2pm – 3pm

Conference of Regulatory Officers

Adelaide, 26 – 27 October 2017

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Conference of Regulatory OfficersAdelaide, 26-27 October 2017

SUPERVISION OF NEWLY ADMITTED PRACTITIONERS

Her Honour Judge Katrina Bochner(Master of the Supreme Court of South Australia and Chair, Board of Examiners)

AND

Michael McNamara (Lecturer in Law and Legal Practice, Flinders University)

Introduction and Overview

• Part 1: Supervision in Context (Michael McNamara)• Supervision Generally• Supervised Legal Practice• Lessons from other Professions• Effective Supervision in Legal Practice

• Part 2: The South Australian Situation (Judge Bochner)• LPEAC Guidelines for Supervised Practice• Supervised Practice in SA: Current Issues

• Part 3: Looking Forward (Judge Bochner and Michael McNamara)• National Guidelines• Supervisor Accreditation• Managing the Time Burden of Supervision

Part 1: Supervision in Context

Supervision Generally

• Aspect of legal practice management

• Risk management function

• Leverage and profitability

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Supervision Generally

• The Duty to Supervise

• R37 of the Australian Solicitors Conduct Rule

“A solicitor with designated responsibility for a matter must exercisereasonable supervision over solicitors and all other employees engagedin the provision of the legal services for that matter.”


Supervised Legal Practice

• Mandated by legislation in all States and Territories

• A final stage work based legal training

• Largely unstructured


Supervised Legal Practice

• Training and support depends on supervisor

• Completion/certification requirement is based purely on the passage of time

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Lessons from Other Professions

• Other professions seem to have a richer understanding of supervision theory and practices

• Psychologists are leaders in the field

• Evidenced-based supervision


Lessons from Other Professions

Effective Supervision

• Supervision in a professional context is multifunctional and includes a range of activities across three main functions:

• Educational • Supportive• Managerial

• The supervisory relationship is critical

• Structured support around the supervisory relationship is needed


Effective Supervision in Legal Practice

• Emerging evidence base for effective supervision in clinical legal education and now legal practice

• Ongoing (nearly completed) empirical doctoral research on Supervised Legal Practice

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Towards Effective Supervision for the Legal Profession: A Focus on Supervised Practice

Ongoing Doctoral Research: Tentative Findings

Functions of Supervision

Both supervisors and supervisees perceive supervision in legal practice as functioning primarily on a normative level (i.e. a focus on managerial aspects, in particular risk management and style)

Supervisors have insufficient time for supervision

Supervisees perceive supervision as lacking in training and support

Discord between supervisors’ general views on supervision and the actual supervisory practices they implement

Supervisors are reluctant to engage on a restorative level (i.e. provide interpersonal support)

Supervisors perceive they provide support to a greater extent than supervisees feel they receive support.



Supervisory Relationship

Supervisors and supervisees do not seem to fully understand the value of regular meetings

Enforcing individual supervisor preferences regarding writing style is a significant aspect of supervision

Supervisees seek more: ‐ Contact time with their supervisor‐ Training and development‐ Empathy and support

Supervisees seek less: ‐ Monitoring and Control‐ Disrespect; and ‐ “Buck‐passing”.

Supervisors commonly handle disagreement with supervisees in an analytical, authoritative manner



Supervised Practice

Two prevailing views: Supervisors who understand the wider purpose of supervised practice and those who don’t.

Junior lawyers completing supervised practice are significantly less likely than other supervisees to perceive the supervision they receive as being appropriate given their level of experience

Junior lawyers completing supervised practice are significantly less likely than other supervisees to feel able to disagree with their supervisor.

The experience of supervisees is wide‐ranging. There is evidence of both strong and weak supervisory relationships.

The norm appears to be a weak to marginal supervisory relationship with ineffective supervision more prevalent than effective supervision.

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Part 2: The South Australian Situation

LPEAC Guidelines for Supervised Legal Practice

• Legal Practitioners Education and Admissions Council (“LPEAC”)

• Background and Development

• Purpose• Assist supervisors in their role as supervisors• Provide supervisees with awareness of the purpose of this period and

their supervisors' role


LPEAC Guidelines for Supervised Legal Practice

• Outlines training and development is key purpose

• Elements of supervision• 1. Awareness of the role of supervisor• 2. Outlines administrative processes• 3. Type of work suitable to be delegated to junior practitioner• 4. Setting objectives• 5. Briefing the junior practitioner (i.e. giving instructions)

Part 2: The South Australian Situation LPEAC Guidelines for Supervised Practice

• Elements of supervision (cont)• 6. Types of Experiences• 7. Whole of Matter Involvement• 8. Competencies• 9. Feedback• 10. Mentoring• 11. Ethics

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Monitoring Supervised Legal Practice: Current Issues

• Competencies and reporting

• Remote supervision

Part 3: Looking Forward (Food For Thought)

• Supervised Legal Practice Guidelines• Iterative process• Renew and revise based on expanding evidence base• National guidelines / cooperation• Put on the legal education agenda


• Protecting Supervisee Well-being• Guidance and Support• Dispute Resolution

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• Preparing Supervisors for Supervision• Supervisor Training• Supervisor Accreditation


• How to manage the burden of supervision?• Investing the time• Managing the opportunity cost• Providing Incentives for Supervisors

• Allocation of CPD points for certain supervision activities• Voluntary reporting of supervision hours (like was done for pro bono)• PI Insurance Terms and Conditions


• Supervised Legal Practice: Pre-Admission or Post Admission• Keep it post-admission!• The real issue is to make this stage effective.

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Questions / Comments

Guidelines for the Supervision of Newly Admitted Practitioners

These guidelines are intended for use by practitioners who are supervising newly admitted practitioners, to assist them in their role as supervisors. In addition, newly admitted practitioners should read these guidelines so that they are aware of the role of their supervising practitioner, and the purpose of the period of supervised practice. This document provides guidelines only and is not a mandatory code of supervision for junior practitioners.

Pursuant to Rule 3 of the Rules of the Legal Practitioners Education and Admission Council 2014 (the Rules), a newly admitted practitioner is not permitted to practise as a principal until he or she has completed a continuous period of two years full-time employment as an employed practitioner, or an equivalent period of part-time employment, following the first issue to him or her of a practising certificate (Rule 3.1(a)). Supervised practice is defined by the Rules as follows:

Supervised practice means practice as an employed practitioner controlled or manager by a legal practitioner entitled to practise as a principal during which supervised practice the practitioner is employed at the location where the principal conducts his or her practice.

No further guidance is provided by the Rules as to the meaning and extent of “practice …controlled or managed by a legal practitioner”. These guidelines endeavour to provide some clarity for controlling or managing legal practitioners as to their role and responsibilities. In these guidelines, such practitioners will be referred to as supervising practitioners, and those being supervised will be referred to junior practitioners.

It is important to remember that the Rules require the supervising practitioner and the junior practitioner to be located in the same physical location. In exceptional circumstances, approval may be given to supervise from a different location, however, specific application to the Board of Examiners must be made for approval before this can occur.

It must also be remembered that supervision is the responsibility of the supervising practitioner and should not be delegated to others, for example, counsel or other practitioners in the employer except in circumstance where it is more appropriate, because of expertise or the like, for another person to supervise the junior practitioner. Even where the supervising practitioner has confidence in the junior practitioner’s skills and abilities, a level of personal supervision is required. Responsibility for the work of the junior practitioner rests with the supervising practitioner. In some settings, it may be appropriate for a junior practitioner to have one principal supervisor, with a number of other supervisors for specific matters or tasks. It is the responsibility of the principal supervising practitioner to ensure that the junior practitioner is being exposed to a broad range of work experiences and is appropriately supervised at all times.

The purpose of supervised practice

It is important to recognise the purpose of supervised practice and why it has been implemented by all admitting authorities across Australia and elsewhere. Supervised practice is the continuation of a newly admitted practitioner’s practical legal training, and is the culmination of his or her formal legal education. Experiential learning has always been an important part of legal education, as demonstrated by the fact that articles of clerkship were for many years the primary means of obtaining the final qualification necessary for practice as a solicitor. However, concerns about the quality of the work offered and supervision provided to articled clerks led to the institutionalisation of practical legal training, to the extent that the vast majority of junior practitioners now complete an approved practical legal training course offered by a university or private provider. It has been

recognised, however, that the formal practical legal training courses are unable to offer the degree or quality of experience required to lead to full qualification and as a result the period of supervised practice has become an accepted and important part of legal training1.

Thus supervision in this context must be distinguished from a lawyer’s general duty to supervise practitioners and other employees who are performing legal or paralegal work for which the lawyer is ultimately responsible. Supervision of this latter type of work is a risk management, productivity and profitability tool. Supervision in the context of the Rules is entirely different, and while it contains elements of risk management, productivity and profitability, it fulfils a much wider purpose. It is the final formal component of a practitioner’s legal education and must be viewed as such by the supervising practitioner2.

Elements of supervision

In supervising a junior practitioner, the supervising practitioner should follow the following guidelines as far as is practicable:

1. Before you agree to supervise a junior practitioner

Before you agree to undertake this role, practise some self awareness about the issue, by asking yourself the following questions:

o Do you have the relevant skills, knowledge and experience in the practice area to supervise a junior practitioner;

o Do you have the time and resources to undertake the task thoroughly; o Are you the right personality type to supervise junior practitioners; o Do you want to supervise junior practitioners; o Do you understand the purpose of supervised practice and where it sits in the junior

practitioner’s legal education; o Do you have the necessary skills to supervise?

Many supervising practitioners do not really want to supervise junior practitioners, however, they do so because they regard it as part of their ongoing obligations to the profession to ensure quality legal education in its final stages and to mentor junior practitioners in the way that they were themselves mentored. Thus, if you answer “no” to the question about wanting to supervise, you may want to look at it in this context.

As to personality type, there are some practitioners who are not suited to supervising junior practitioners for a range of reasons. Many of these issues can be overcome through training, and through arrangements such as joint supervision, to give a supervising practitioner confidence and skills in supervising others.

1 Jeff Giddings and Michael McNamara, 'Preparing Future Generations of Lawyers for Legal Practice: What's Supervision Got to Do With It?' (2014) 37 University of New South Wales Law Journal 1226. 2 Ibid.

2. Administrative processes

Ensure that the junior practitioner has been fully inducted into the administrative processes of the employer. This should include:

o File opening procedures; o Conflicts checking; o Practice management systems; o Familiarisation with the requirements of Schedule 3 of the Legal Practitioners Act

1981 (SA); o Billing methods and procedures including understanding of retainer agreements and

their terms; o Use of standard office templates and precedents.

3. The type of work to be delegated to the junior practitioner

It is important to strike a balance between the practical needs of the employer and the education needs of the junior practitioner. When choosing what work to delegate to a junior practitioner:

o Provide work that allows the junior practitioner to develop his or her skills; o Support ongoing development by identifying skills gaps and actively seeking to

provide opportunities to fill those gaps through practical experience; o Avoid adopting the attitude that it would be quicker/easier to do the job

yourself; o Do not delegate work that is so difficult or outside the junior practitioner’s level

of experience that it serves only to discourage the junior practitioner and create or reinforce feelings of inadequacy.

4. Objective setting

When you commence supervising a junior practitioner, discuss the following questions with him or her, and make a note of the discussion for future reference:

o What are the employer’s needs and goals; o What are the junior practitioner’s needs and goals; o What career aspirations does the junior practitioner have that can be enhanced

during the period of supervision; o Has the junior practitioner identified any areas of skill or knowledge that he or

she would specifically like to develop.

It may be useful to establish some concrete goals such as drafting, providing advice or appearing in court, so that there is some structure to the supervision process.

5. Briefing the junior practitioner

When briefing a junior practitioner in relation to a task:

o Ensure the junior practitioner has the capacity to undertake the work; o Provide sufficient background information to allow the junior practitioner to

undertake the task efficiently;

o Provide sufficient context so that the junior practitioner understands the “bigger picture” in relation to the file. The junior practitioner should be able to understand the importance of the task in the context of the file as a whole;

o Identify the results that you expect; o Identify the time frame within which you expect the task to be completed, and if

the task is urgent, ensure that this is conveyed; o Give the junior practitioner the authority and the resources to undertake the

task. This may include authorising the junior practitioner to contact the client or counsel, authorising the use of other staff within the employer, such as paralegals, librarians and support staff, or incurring disbursements such as searches.

o Encourage initiative and questions about the task; o Seek feedback from the junior practitioner before he or she leaves your office to

ensure that he or she has understood the task.

6. Types of experience

It is important to ensure that the junior practitioner receives a range of experiences and development opportunities.

The junior practitioner should be offered a combination of the following:

o Observation: the opportunity to observe you undertaking your professional responsibilities, including interviewing, court attendances and the like; o Instruction: telling the junior practitioner how to do something and then

giving him or her the opportunity to follow your instructions; o Trial and error: allow the junior practitioner “to have a go” and then offer

constructive feedback on the work.

It should be noted that the make up of these various methods will vary between junior practitioners and supervising practitioners, depending on his or her level of experience and confidence. For example, at the commencement of supervised practice, supervision may consist more of observation and instruction, and as the junior practitioner gains more experience, trial and error may become the predominant method of supervision. The timing of the transition from observation and instruction to “having a go” will vary depending on the individual junior practitioner, the type of task, the subject matter and the nature of the file.

7. Whole of matter involvement

It is important to ensure that the junior practitioner is exposed to all aspects of file management, including strategic planning, goal setting and outcome analysis. As the aim of supervised practice is to provide the junior practitioner with the skills to manage files in their entirety, unsupervised, a purely task based approach to supervision will not provide the necessary training and experience. The junior practitioner should be given the opportunity to be involved in all aspects of a file management and be encouraged to express views and ideas as to its future conduct. The junior practitioner should also be encouraged to critically analyse the steps in each matter that have already been undertaken.

8. Competencies

It is important to ensure that a range of competencies is developed during the period of supervised practice. The following is a list of the competencies that must be addressed, to ensure that the junior practitioner’s formal legal education is satisfactorily completed:

o Interviewing clients, taking instructions and generally dealing with clients; o Advising, orally and in writing; o Undertaking legal research; o Ascertaining and analysing facts against the legal framework of a matter; o Legal writing, including:

Correspondence; Pleadings; Contracts/deeds/equivalent.

o Advocacy, dispute resolution/negotiation o Planning the ongoing conduct of matters.

This list is not exhaustive and there may be other matters that can be addressed during the period of supervised practice.

9. Feedback

Feedback is a vitally important component of supervision. The way that feedback is provided will have a direct impact on the value of the supervised practice, the quality of the learning that is achieved, and the junior practitioner’s overall successful development as a practitioner.

The following factors should be kept in mind:

o An “open door” policy is not enough. Even if your door is open, if you look busy, harassed, or just grumpy, many junior practitioners will be reluctant to intrude;

o For feedback to be effective, it needs to be regular and ongoing. It also needs to be proactive, rather than reactive. This means that it should become a standard part of the weekly routine of both the supervising practitioner and the junior practitioner, where the sessions are aimed at evaluating work and offering suggestions and solutions, and addressing problems and concerns in a timely manner, before they escalate.

o Set aside a specific time at least weekly for feedback. At this time, you can go through the work carried out by the junior practitioner and provide specific feedback in relation to each task performed. “Real time” feedback is far more valuable than simply receiving back a letter or pleading covered in red;

o At each meeting you can also evaluate the junior practitioner’s work load to determine that he or she is neither too busy nor not busy enough. It needs to be remembered that not being busy enough is almost as demoralising as being too busy;

o Feedback should be constructive and encouraging. Point out areas for improvement without being personally critical;

o Be sure to acknowledge things done well as well as things requiring improvement and always give credit where it is due;

o Adopt a solution focus to mistakes. Point out what needs improving and provide advice on how this can be achieved.

o Listening is as important a part of providing feedback as offering constructive criticism and advice.

o Reflection should also be part of the feedback process. Ask the junior practitioner to reflect on the work undertaken with questions such as “what worked well today” and “what did you have difficulty with today”.

10. Mentoring

Mentoring is different to supervising and should probably be provided by someone other than the supervising practitioner. The ability to offer a junior practitioner a mentor as well as a supervisor will depend very much on the size and nature of the employer.

11. Ethics

As well as supervising the junior practitioner’s legal work, you also have a responsibility to supervise their ethical development as a practitioner. In this regard, probably the best method of supervision is to model appropriate ethical behavioural and professional standards. You should ensure that the junior practitioner understands:

o The importance of ethical time recording and billing practices, including the need to differentiate between billable and non-billable work;

o The obligations of confidentiality; o The obligations of a practitioner as an officer of the Court and what this means in

real terms; o The nature and effect of the Australian Solicitors’ Conduct Rules.

References

1. Caitlin Hamilton and Jim Milne, 'Supervising Graduate Lawyers in Legal Practice' (Paper presented at the Conference of Regulatory Officers, Hobart, 2015).

2. Queensland Law Society, Guide to Effective Supervision in Legal Practice (2010). 3. The Law Society (UK), Supervision (6 October 2011) <http://www.lawsociety.org.uk/support-

services/advice/practice-notes/supervision/>. 4. Jeff Giddings and Michael McNamara, 'Preparing Future Generations of Lawyers for Legal

Practice: What's Supervision Got to Do With It?' (2014) 37 University of New South Wales Law Journal 1226.

5. Socio-Legal Research Centre and Legal Services Commission, Griffith University, 'Shouldering the Supervision Load' (Symposium Report, Griffith University, August 2009).

6. Michael John McNamara, 'Ethical Development During Supervised Legal Practice' (Paper presented at the Australian and New Zealand Legal Ethics Colloquium, Monash University Law Chambers, Melbourne, 3-4 December 2015).

http://www.lawsociety.org.uk/support-services/advice/practice-notes/supervision/

http://www.lawsociety.org.uk/support-services/advice/practice-notes/supervision/

Documents

Supervision of Newly Admitted Practitioners