Guidelines for the Supervision of Newly Admitted Practitioners

Transcription

1 Guidelines fr the Supervisin f Newly Admitted Practitiners These guidelines are intended fr use by practitiners wh are supervising newly admitted practitiners, t assist them in their rle as supervisrs. In additin, newly admitted practitiners shuld read these guidelines s that they are aware f the rle f their supervising practitiner, and the purpse f the perid f supervised practice. This dcument prvides guidelines nly and is nt a mandatry cde f supervisin fr junir practitiners. Pursuant t Rule 3 f the Rules f the Legal Practitiners Educatin and Admissin Cuncil 2014 (the Rules), a newly admitted practitiner is nt permitted t practise as a principal until he r she has cmpleted a cntinuus perid f tw years full-time emplyment as an emplyed practitiner, r an equivalent perid f part-time emplyment, fllwing the first issue t him r her f a practising certificate (Rule 3.1(a)). Supervised practice is defined by the Rules as fllws: Supervised practice means practice as an emplyed practitiner cntrlled r manager by a legal practitiner entitled t practise as a principal during which supervised practice the practitiner is emplyed at the lcatin where the principal cnducts his r her practice. N further guidance is prvided by the Rules as t the meaning and extent f practice cntrlled r managed by a legal practitiner. These guidelines endeavur t prvide sme clarity fr cntrlling r managing legal practitiners as t their rle and respnsibilities. In these guidelines, such practitiners will be referred t as supervising practitiners, and thse being supervised will be referred t junir practitiners. It is imprtant t remember that the Rules require the supervising practitiner and the junir practitiner t be lcated in the same physical lcatin. In exceptinal circumstances, apprval may be given t supervise frm a different lcatin, hwever, specific applicatin t the Bard f Examiners must be made fr apprval befre this can ccur. It must als be remembered that supervisin is the respnsibility f the supervising practitiner and shuld nt be delegated t thers, fr example, cunsel r ther practitiners in the emplyer except in circumstance where it is mre apprpriate, because f expertise r the like, fr anther persn t supervise the junir practitiner. Even where the supervising practitiner has cnfidence in the junir practitiner s skills and abilities, a level f persnal supervisin is required. Respnsibility fr the wrk f the junir practitiner rests with the supervising practitiner. In sme settings, it may be apprpriate fr a junir practitiner t have ne principal supervisr, with a number f ther supervisrs fr specific matters r tasks. It is the respnsibility f the principal supervising practitiner t ensure that the junir practitiner is being expsed t a brad range f wrk experiences and is apprpriately supervised at all times. The purpse f supervised practice It is imprtant t recgnise the purpse f supervised practice and why it has been implemented by all admitting authrities acrss Australia and elsewhere. Supervised practice is the cntinuatin f a newly admitted practitiner s practical legal training, and is the culminatin f his r her frmal legal educatin. Experiential learning has always been an imprtant part f legal educatin, as demnstrated by the fact that articles f clerkship were fr many years the primary means f btaining the final qualificatin necessary fr practice as a slicitr. Hwever, cncerns abut the quality f the wrk ffered and supervisin prvided t articled clerks led t the institutinalisatin f practical legal training, t the extent that the vast majrity f junir practitiners nw cmplete an apprved practical legal training curse ffered by a university r private prvider. It has been

2 recgnised, hwever, that the frmal practical legal training curses are unable t ffer the degree r quality f experience required t lead t full qualificatin and as a result the perid f supervised practice has becme an accepted and imprtant part f legal training 1. Thus supervisin in this cntext must be distinguished frm a lawyer s general duty t supervise practitiners and ther emplyees wh are perfrming legal r paralegal wrk fr which the lawyer is ultimately respnsible. Supervisin f this latter type f wrk is a risk management, prductivity and prfitability tl. Supervisin in the cntext f the Rules is entirely different, and while it cntains elements f risk management, prductivity and prfitability, it fulfils a much wider purpse. It is the final frmal cmpnent f a practitiner s legal educatin and must be viewed as such by the supervising practitiner 2. Elements f supervisin In supervising a junir practitiner, the supervising practitiner shuld fllw the fllwing guidelines as far as is practicable: 1. Befre yu agree t supervise a junir practitiner Befre yu agree t undertake this rle, practise sme self awareness abut the issue, by asking yurself the fllwing questins: D yu have the relevant skills, knwledge and experience in the practice area t supervise a junir practitiner; D yu have the time and resurces t undertake the task thrughly; Are yu the right persnality type t supervise junir practitiners; D yu want t supervise junir practitiners; D yu understand the purpse f supervised practice and where it sits in the junir practitiner s legal educatin; D yu have the necessary skills t supervise? Many supervising practitiners d nt really want t supervise junir practitiners, hwever, they d s because they regard it as part f their nging bligatins t the prfessin t ensure quality legal educatin in its final stages and t mentr junir practitiners in the way that they were themselves mentred. Thus, if yu answer n t the questin abut wanting t supervise, yu may want t lk at it in this cntext. As t persnality type, there are sme practitiners wh are nt suited t supervising junir practitiners fr a range f reasns. Many f these issues can be vercme thrugh training, and thrugh arrangements such as jint supervisin, t give a supervising practitiner cnfidence and skills in supervising thers. 1 Jeff Giddings and Michael McNamara, 'Preparing Future Generatins f Lawyers fr Legal Practice: What's Supervisin Gt t D With It?' (2014) 37 University f New Suth Wales Law Jurnal Ibid.

3 2. Administrative prcesses Ensure that the junir practitiner has been fully inducted int the administrative prcesses f the emplyer. This shuld include: File pening prcedures; Cnflicts checking; Practice management systems; Familiarisatin with the requirements f Schedule 3 f the Legal Practitiners Act 1981 (SA); Billing methds and prcedures including understanding f retainer agreements and their terms; Use f standard ffice templates and precedents. 3. The type f wrk t be delegated t the junir practitiner It is imprtant t strike a balance between the practical needs f the emplyer and the educatin needs f the junir practitiner. When chsing what wrk t delegate t a junir practitiner: Prvide wrk that allws the junir practitiner t develp his r her skills; Supprt nging develpment by identifying skills gaps and actively seeking t prvide pprtunities t fill thse gaps thrugh practical experience; Avid adpting the attitude that it wuld be quicker/easier t d the jb yurself; D nt delegate wrk that is s difficult r utside the junir practitiner s level f experience that it serves nly t discurage the junir practitiner and create r reinfrce feelings f inadequacy. 4. Objective setting When yu cmmence supervising a junir practitiner, discuss the fllwing questins with him r her, and make a nte f the discussin fr future reference: What are the emplyer s needs and gals; What are the junir practitiner s needs and gals; What career aspiratins des the junir practitiner have that can be enhanced during the perid f supervisin; Has the junir practitiner identified any areas f skill r knwledge that he r she wuld specifically like t develp. It may be useful t establish sme cncrete gals such as drafting, prviding advice r appearing in curt, s that there is sme structure t the supervisin prcess. 5. Briefing the junir practitiner When briefing a junir practitiner in relatin t a task: Ensure the junir practitiner has the capacity t undertake the wrk; Prvide sufficient backgrund infrmatin t allw the junir practitiner t undertake the task efficiently;

4 Prvide sufficient cntext s that the junir practitiner understands the bigger picture in relatin t the file. The junir practitiner shuld be able t understand the imprtance f the task in the cntext f the file as a whle; Identify the results that yu expect; Identify the time frame within which yu expect the task t be cmpleted, and if the task is urgent, ensure that this is cnveyed; Give the junir practitiner the authrity and the resurces t undertake the task. This may include authrising the junir practitiner t cntact the client r cunsel, authrising the use f ther staff within the emplyer, such as paralegals, librarians and supprt staff, r incurring disbursements such as searches. Encurage initiative and questins abut the task; Seek feedback frm the junir practitiner befre he r she leaves yur ffice t ensure that he r she has understd the task. 6. Types f experience It is imprtant t ensure that the junir practitiner receives a range f experiences and develpment pprtunities. The junir practitiner shuld be ffered a cmbinatin f the fllwing: Observatin: the pprtunity t bserve yu undertaking yur prfessinal respnsibilities, including interviewing, curt attendances and the like; Instructin: telling the junir practitiner hw t d smething and then giving him r her the pprtunity t fllw yur instructins; Trial and errr: allw the junir practitiner t have a g and then ffer cnstructive feedback n the wrk. It shuld be nted that the make up f these varius methds will vary between junir practitiners and supervising practitiners, depending n his r her level f experience and cnfidence. Fr example, at the cmmencement f supervised practice, supervisin may cnsist mre f bservatin and instructin, and as the junir practitiner gains mre experience, trial and errr may becme the predminant methd f supervisin. The timing f the transitin frm bservatin and instructin t having a g will vary depending n the individual junir practitiner, the type f task, the subject matter and the nature f the file. 7. Whle f matter invlvement It is imprtant t ensure that the junir practitiner is expsed t all aspects f file management, including strategic planning, gal setting and utcme analysis. As the aim f supervised practice is t prvide the junir practitiner with the skills t manage files in their entirety, unsupervised, a purely task based apprach t supervisin will nt prvide the necessary training and experience. The junir practitiner shuld be given the pprtunity t be invlved in all aspects f a file management and be encuraged t express views and ideas as t its future cnduct. The junir practitiner shuld als be encuraged t critically analyse the steps in each matter that have already been undertaken.

5 8. Cmpetencies It is imprtant t ensure that a range f cmpetencies is develped during the perid f supervised practice. The fllwing is a list f the cmpetencies that must be addressed, t ensure that the junir practitiner s frmal legal educatin is satisfactrily cmpleted: Interviewing clients, taking instructins and generally dealing with clients; Advising, rally and in writing; Undertaking legal research; Ascertaining and analysing facts against the legal framewrk f a matter; Legal writing, including: Crrespndence; Pleadings; Cntracts/deeds/equivalent. Advcacy, dispute reslutin/negtiatin Planning the nging cnduct f matters. This list is nt exhaustive and there may be ther matters that can be addressed during the perid f supervised practice. 9. Feedback Feedback is a vitally imprtant cmpnent f supervisin. The way that feedback is prvided will have a direct impact n the value f the supervised practice, the quality f the learning that is achieved, and the junir practitiner s verall successful develpment as a practitiner. The fllwing factrs shuld be kept in mind: An pen dr plicy is nt enugh. Even if yur dr is pen, if yu lk busy, harassed, r just grumpy, many junir practitiners will be reluctant t intrude; Fr feedback t be effective, it needs t be regular and nging. It als needs t be practive, rather than reactive. This means that it shuld becme a standard part f the weekly rutine f bth the supervising practitiner and the junir practitiner, where the sessins are aimed at evaluating wrk and ffering suggestins and slutins, and addressing prblems and cncerns in a timely manner, befre they escalate. Set aside a specific time at least weekly fr feedback. At this time, yu can g thrugh the wrk carried ut by the junir practitiner and prvide specific feedback in relatin t each task perfrmed. Real time feedback is far mre valuable than simply receiving back a letter r pleading cvered in red; At each meeting yu can als evaluate the junir practitiner s wrk lad t determine that he r she is neither t busy nr nt busy enugh. It needs t be remembered that nt being busy enugh is almst as demralising as being t busy; Feedback shuld be cnstructive and encuraging. Pint ut areas fr imprvement withut being persnally critical;

6 Be sure t acknwledge things dne well as well as things requiring imprvement and always give credit where it is due; Adpt a slutin fcus t mistakes. Pint ut what needs imprving and prvide advice n hw this can be achieved. Listening is as imprtant a part f prviding feedback as ffering cnstructive criticism and advice. Reflectin shuld als be part f the feedback prcess. Ask the junir practitiner t reflect n the wrk undertaken with questins such as what wrked well tday and what did yu have difficulty with tday. 10. Mentring Mentring is different t supervising and shuld prbably be prvided by smene ther than the supervising practitiner. The ability t ffer a junir practitiner a mentr as well as a supervisr will depend very much n the size and nature f the emplyer. 11. Ethics As well as supervising the junir practitiner s legal wrk, yu als have a respnsibility t supervise their ethical develpment as a practitiner. In this regard, prbably the best methd f supervisin is t mdel apprpriate ethical behaviural and prfessinal standards. Yu shuld ensure that the junir practitiner understands: The imprtance f ethical time recrding and billing practices, including the need t differentiate between billable and nn-billable wrk; The bligatins f cnfidentiality; The bligatins f a practitiner as an fficer f the Curt and what this means in real terms; The nature and effect f the Australian Slicitrs Cnduct Rules.

7 References 1. Caitlin Hamiltn and Jim Milne, 'Supervising Graduate Lawyers in Legal Practice' (Paper presented at the Cnference f Regulatry Officers, Hbart, 2015). 2. Queensland Law Sciety, Guide t Effective Supervisin in Legal Practice (2010). 3. The Law Sciety (UK), Supervisin (6 Octber 2011) < 4. Jeff Giddings and Michael McNamara, 'Preparing Future Generatins f Lawyers fr Legal Practice: What's Supervisin Gt t D With It?' (2014) 37 University f New Suth Wales Law Jurnal Sci-Legal Research Centre and Legal Services Cmmissin, Griffith University, 'Shuldering the Supervisin Lad' (Sympsium Reprt, Griffith University, August 2009). 6. Michael Jhn McNamara, 'Ethical Develpment During Supervised Legal Practice' (Paper presented at the Australian and New Zealand Legal Ethics Cllquium, Mnash University Law Chambers, Melburne, 3-4 December 2015).