Vollans, T --- "The law school with two masters?" [2009] LegEdDig 22; (2009) 17(2) Legal Education Digest 23

• The law school with two masters?

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The law school with two masters?

T Vollans

2 Web J Current Legal Issues, 2008, pp 1–10.

This paper will explore aspects of plagiarism within undergraduate legal education (the Qualifying Law Degree – hereafter QLD). It will describe, firstly, the commercial, educational and professional contextual importance of professional accreditation for all the stakeholders (the law schools, the professional bodies, and the public); comment upon the inconstancy of approach to plagiarism therein; and finally suggest an approach for law schools at national level.

The massification of higher education, including the expansion and facilitation of student access, and a developing global culture has encouraged a move from direct assessment by the professional bodies into, and a consequential growth of, accredited courses offering full or partial exemption or relief. The professional relevance of such higher education is fed by the desire for enhanced student employment prospects.

Whilst this perspective is not specific to the QLD, it connects well with the recent dialogue over proposed changes in legal education which has reactivated the debate on the purpose of undergraduate legal education and the extent to which the professional bodies should determine legal education and training and the possible alternatives to the QLD, if abolished.

This leads to consideration of the interaction of the standards – academic and professional – in the primary context of professional recognition of QLDs, as exemplified in the respective duties, obligations, discretions, and rights triggered by an allegation of cheating in academic assessment. This also engages consideration of the current theoretical principles underpinning the recognition for professional purposes of a law degree, the position of law school providers, the organisational relationship between the professional bodies and the law schools, and the relevance of the qualifying law degree to student recruitment. In so doing it prompts an examination of the relationship model existing between the professional bodies and the law schools so as to identify the respective obligations discretions and rights – which themselves should inform the design, creation, operation and execution of policies with regard to plagiarism. It also explores a possible strategy to address plagiarism; to offer a transparent and effective reassurance of quality standards for the professional bodies; to demonstrate robust academic practices; and to achieve further and closer confidence-enhancing links with the professional bodies.

Although the study of law has considerable history, the professionally recognised law degree is comparatively new to academia. In 1913, the Haldane Commission had argued for academia to be free from the professional bodies, and for many years a degree (in any subject) was not a precondition of legal practice. After the Second World War, academic legal education slowly increased. Some (usually civic) universities offered academic legal programmes to run contemporaneously with the legal vocational education provided, and assessed, by the professions, but others resisted subsuming professional legal education into its academic sibling. The Ormrod Report in 1971 addressed and distinguished academic and vocational education of lawyers.

Whilst there was some subsequent movement through the creation of the Advisory Committee on Legal Education and Conduct following the Courts and Legal Services Act 1990, there remained the general principle of distinguishing academic from vocational legal education, and of allowing a recognised academic law degree to satisfy the academic requirements for entry into either branch of the legal profession. However, the sting remained in the tail: through the Joint Academic Stage Board (hereafter JASB) the professional bodies specified the syllabus and parameters of assessment (‘Joint Announcement on Qualifying Law Degrees’); and law schools had to provide information about the courses to enable the professional bodies to discharge their own responsibilities under the Courts and Legal Services Act, under the ultimate sanction of withdrawal of recognition. However the simplicity of this principle and that of the professional bodies’ commitment to work in partnership with law schools has masked the continuing underlining tensions between the professional bodies and the academic community (usually represented by the SLS, CHULS, and ALT). This tension can be seen in the JASB’s promulgation of, and the responses to, the ‘Joint Announcement on Qualifying Law Degrees’ and the ‘Statements of the Joint Academic Stage Board’ specifying in broad terms the syllabus, resources and provision for QLDs. In its response, the SLS sought reassurance of greater consultation by the Professional Bodies with the Law Schools, and emphasised the role of external reviewers rather than blanket imposition of provisions.

Today, the importance of ensuring that a programme is professionally recognised lies in the increasingly competitive student recruitment market. A QLD course is often seen to be financially stronger through having the potential to recruit to target, to attract better students and to justify higher fees – a view reiterated to the writer by Deans and senior officers within many law schools. Consequently, a candidate with a law degree which is not a QLD will be placed in the same position as if s/he had studied any other degree, ie. needing an additional year of full time study for the Common Professional Examination.

Until about two decades ago, many law schools were populated with staff combining professional practice and academic delivery, and so, culturally, they had a foot in both camps.

But expansion of student numbers and other increased academic demands have reduced the number of staff able and willing to engage, or retain a stake, in professional practice (or even holding membership of one of the relevant professional bodies), particularly where the law school does not offer vocational programmes such as the Bar Vocational Course and Legal Practice Course (and therefore require staff with professional qualifications and experience of legal practice). This puts at risk the normative professionally ‘shared assumptions and informal networks and quality procedures’.

This also necessitates the correct labelling of the conceptual relationship between the professional bodies, the law schools and the student, to enable its characteristics to be identified, and the implications thereof understood.

The first (student – law school) has contractual characteristics; the second (student – professional body) probably falls outside normal contract as acceptance of an offer made to all the world depends upon an intention to create a legal relationship (including the tests in Carlill v. The Carbolic Smoke Ball Co); and the third (law school – professional body) is non contractual, being based merely around representations (with liability in tort). In the absence of a student’s formal application for professional membership (usually upon graduation), no relationship would normally subsist between the student and the professional body. As a consequence, prior to application for student registration, the professional bodies would lack authority to investigate matters of academic conduct, were any to be reported.

Academic misconduct – commonly described as ‘cheating’ is apparently widespread, but not new – Dorothy L Sayers used it as a central issue in the plot of Gaudy Night. A recent Qualifications and Curriculum Authority’s report revealed an increase in penalised cases of malpractice rose by more than 27 per cent between 2004 and 2005 to 4500 cases although two thirds of all these offences were the unauthorised retention of a mobile phone rather than an attempt to cheat. Moreover, ‘as a result of changing demographic characteristics students are likely to be less well prepared for HE that was the case’.

So, far from the offences being deliberate attempts to cheat, it would appear that many malpractice cases are more likely to be inadvertent; so favouring the current thinking that the numbers deliberately cheating are small. The need for such sub-classification is important for several reasons: firstly, from a legalistic point of view the relevant mental elements are significantly different. One cannot ‘accidentally’ impersonate another, nor write notes on a shirt or blouse cuff, or have a wired wig and, so, as malpractice the implication is of a deliberate act of deceit and dishonesty. In contrast, the mere omission of a footnote affords a wider range of interpretations which might be better described as mis-practice: poor referencing discipline, lack of understanding of the material, or lack of cultural awareness.

Academic malpractice is undoubtedly exacerbated by the growth in assessment by coursework: firstly, the lack of adequate supervision within secondary education can facilitate the establishment of bad practices including un-attributed borrowing of web-based and other materials – described as a culture of work ‘cobbled together from the internet’. Secondly, many establishments in secondary education encourage students to submit a draft of the work for ‘feedback’ prior to summative submission; and the lack of this latter facility in Higher Education can lead to student insecurity. The consequence is that many students entering law schools find that student numbers do not allow staff to provide individual guidance, and, so, turn to other sources of assistance. Following reports of Parliamentary investigations into on-line essays, and with the intention of reducing extensive internet cheating, the Qualifications and Curriculum Authority (hereinafter QCA) proposed that assessments should be completed under supervised conditions and not undertaken at home.

The QCA’s approach involves ‘virtue, prevention and policing’ ie. instilling an awareness of the ethics of the electronic age, redesigning assignments, and imposing penalties.

Underwood’s research demonstrated that those most prone to cheat are in a high-pressure academic environment, reinforcing the suspicion that the introduction of higher financial contributions towards tuition costs further focuses the student on the need of evidence of achievement (including professional accreditation). There was also some noted correlation between low IELTS (or GCSE English Language) scores and cheating, thereby indicating that students who struggle with English language proficiency may resort to cheating to pass. So, it can be seen that where the accredited degree is viewed as a means to an end, then anything which achieves the degree can be justified. The conflation of the academic award with professional recognition within the QLD merely intensifies the pressure on the student to succeed and thereby further exacerbates the problems surrounding academic misconduct within the QLD.

In his discipline of philosophy, George MacDonald Ross has suggested that one problem is that of the student obliged to study a component as part of a degree programme without seeing its relevance, and offers the example of the study of medical ethics in a medical degree. As a strategy, Ross proposes ‘Given that students won’t cheat if they want to learn, the key to preventing criminal behaviour is to foster a culture in which learning is valued for its own sake – in which those who arrive with enthusiasm don’t lose it, and the others acquire it. This involves both eliminating structural factors for which we ourselves are responsible and paying more attention to developing good practice’.

But there are other problems. Ross alludes to the difficulties caused by a lack of a single definition of academic malpractice and to the conjuncture of unintentional plagiarism with poor academic practice, commenting that even ‘experienced scholars will disagree where the line [between common and non-common knowledge] is to be drawn’.

Andrew Hamnett (Vice Chancellor of Strathclyde University) echoes this view: ‘... students are confused about what constitutes plagiarism. There is a grey area between using a reference and direct copying some students don’t fully understand’.

Whilst new technology (eg. Turnitin) can identify text copied from Internet sources, it fails to identify the un-attributed use of the underpinning ideas; and it cannot easily distinguish between malpractice and mis-practice. Jude Carroll at Oxford Brookes has criticised sole reliance on electronic detection system and argued for, inter alia, an active senior management group; greater student feedback; improved law schools support of staff addressing, reporting and disciplining plagiarism; and improved assessment.

The problem of academic malpractice is situated close to the expectation that law schools meet recruitment and retention levels but also without loss of standards; and so law schools are keen to demonstrate maintenance of standards through publicising successful detection and disciplinary processes (including expulsion).

The problem is that there remains disparity in approaches to plagiarism between institutions. Deciding whether the ‘wrong’ is academic misconduct is an academic (if highly disputed) issue turning on the insufficiency of the direct attribution of sources, and it may prove tiresome to substantiate the charge (without invaluable objective evidence, such as provided by Turnitin) within the disciplinary process for academic assessment. An easier approach is to see the ‘offence’ as one of poor academic practice resulting in deduction of mark, without any formal disciplinary process charge or investigation; but this may tempt students (and staff) into charge- / plea-bargaining rather than face a formal disciplinary process.

To handle the volume of malpractice cases outside Higher Education, the Joint Council for General Qualifications operates an tiered approach: the first stage is investigatory with fixed penalties in the event of finding prima facie evidence; the student may appeal to a Review Panel staffed by senior academic advisers; and a final appeal lies to the Malpractice Appeal Panel (MAP), staffed principally by independent lawyers. From the MAP lies only an application to the High Court for Judicial Review. Drawing upon unpublished data taken from cases heard before it, the present writer comments that this system seems to operate efficiently and effectively with only a handful of cases reaching the MAP annually.

Academic malpractice committed within the framework of a professionally accredited degree places at risk not only the degree but also the professional accreditation accorded to qualifications achieved at that institution. The professional bodies expect the law school to advise of any plagiarism determination concerning a student registered on a QLD and also when writing a students reference for professional membership.

Moreover, on its application for student membership (typically immediately after graduation), the Law Society requests details and the results of investigation of any accusation of plagiarism and in serious cases may refuse to grant student membership: ‘When you enrol as a student member of the Law Society, you must declare any information that might affect your suitability to be a solicitor. Failure to do so may have serious implications. Such information includes any criminal conviction, including official cautions, reprimands and final warnings, even if they are spent; any instance of cheating in exams or plagiarism during a course of study.’

However, the professional bodies’ attitude to the actual adverse finding may vary dependent upon the nature of the offence: thus poor referencing should be distinguished from malpractice: and the vitally important distinction between ‘innocent’ and ‘dishonest’ also highlights a potential gulf between professional and academic perspectives.

The difficulty is that the professional bodies have delegated to the law schools the task of policing academic malpractice but those professional bodies have failed to articulate a clear definition of academic malpractice. This has allowed law schools to develop only a generalised notion of academic malpractice with fragmented interpretations and responses; and it is left to staff, often at the lower levels, to effect crucial judgements. The combination of individual attitudes of individual staff members, and varying institutional policies with disparate application régimes, risk an activity being viewed as poor academic practice at one institution and as academic misconduct at another. In this uncertainty, the suspicion arises that some legal academics, knowing the serious consequences upon a student’s career of a successful charge of academic malpractice, may be less conscientious in initiating the process. The resultant practice lacks transparency, is unfair to students, fails to provide objective assurance to the professional bodies offering professional recognition, and thereby puts at risk the law school’s ability to resist internal pressure to change offered by the professional bodies.

In contrast, the Joint Council for General Qualifications malpractice procedures have significantly and successfully reduced the confusion and the administrative workload surrounding malpractice by providing consistency between the various QCA Boards through a series of defined broad categories of offences (with examples), agreed penalty bands and normative recommendations for action. It is time that the professional bodies should offer clearer guidance to Law Schools by establishing a schema of clearly defined categories of academic misconduct; commonality in the recognition of degrees of seriousness; agreed bands of penalties; and an essentially systemic institutional acceptance of the primacy thereof over institutional values and procedures practices and, consequently, should be built upon research of common types of plagiarism within law programmes; the location of responsibility of identifying plagiarism; investigative and disciplinary processes; and sanctions. This could be achieved through a questionnaire and subsequent structured interviews co-ordinated via one or more of the academic bodies (e.g. SLS or CHULS), and the professional bodies to evidence co-operation and engagement with the professional bodies’ current requirements. From the results could be extracted a Common Code of Definitions, Practice and Penalties for QLDs.

This paper has explored a theme familiarly recurrent in Higher Education and exemplified by the conflict of interests and duties in QLD programmes and epitomised in the title of Goldoni’s A Servant to Two Masters: ‘the servant is trying to deliver food to his different masters (but which courses to which masters?) while grabbing some food himself’.

It has shown both the importance of the QLD within the provision of undergraduate legal education, and the consequential need for law schools to retain the confidence of the professional bodies. It has also explored the theoretical relationship model existing between the professional bodies and the law schools. It has demonstrated that the relationship pivots on a precarious reciprocal trust, and that the growth of plagiarism; the lack of universal agreement upon a definition thereof; the consequential procedures, together with the professional bodies’ uncertain focus thereon risks undermining that trust. The suspicion is that part of the problem lies with the lack of an agreed definition of plagiarism amongst law school and the disparity of procedures and wider interpretative margin within HE.

Consequently, the confidence of the professional bodies should be retained through a review of institutional practices with regard to plagiarism within QLDs. The objective would be a common policy practice and approach, co-ordinated by the SLS and CHULS with the concurrence of the professional bodies.