What does the future hold for local authority legal departments when it comes to staffing? And where are tomorrow’s public sector lawyers going to come from? Philip Hoult asks leading heads of legal.
In April it emerged that the number of solicitors employed in local government had fallen 3.3% in the year to 31 July 2012.
Given the cuts local authorities have been required to make since the Comprehensive Spending Review in 2010, arguably, this should have come as no surprise. And there are understandable fears that worse is yet to come as the current budgetary pressures on councils are set to last until 2018 at the very least.
It would, therefore, be easy to be gloomy about the future for local government legal departments. But, in fact, there are valid reasons for a certain degree of optimism.
Although the Law Society’s annual statistical review revealed that the number of solicitors employed in the sector fell to 4,509 in 2011/12, the total was nevertheless higher than for 2008/9 (4,372) and 2006/7 (4,018).
Nor was it immediately clear the extent to which Chancery Lane had included the number of locums working for local authorities. A recent study by Comensura, the supply specialist, revealed that the usage of temporary lawyers by councils between January and March 2013 was 9% higher than in the same period the previous year.
What is more, research for Local Government Lawyer’s Management 2013 supplement suggested that the impact of the cuts was more likely to be felt by external advisers than in-house lawyers, at least initially.
According to Michelle Sacks, Deputy Head of Law at Staffordshire County Council, a number of factors will dictate whether councils continue to invest in their legal teams and maintain staffing levels.
“One thing underpinning all of this is the way that the legal department is perceived by internal clients, and whether it is seen to provide value,” she says. “In the smaller councils that often comes down to the quality of the head of legal and how they interact with members and the chief executive. In the larger councils, it is not just the head of legal, it is the next tier of management down.”
It is crucial that the legal team is not seen as an obstacle to progress at a time when there is great pressure simply to get things done, she adds. To assure its future, a department needs to be involved in the decision-making process and provide risk-based solutions.
Teams also need to raise their game when it comes to customer service. “It is very much moving – and it has to move – away from the team being in an ivory tower,” Sacks says. “This might mean being aware of value for money and broader aspects, such as whether there is a possible PR issue, beyond the narrow point on which the lawyers are advising.
“If those things are being done, then I think you will find that councils still value their legal services and will therefore provide investment or funding. On the flipside, if the head of legal is not engaged with the chief executive or senior members, their views are not listened to and they are sidelined. The consequences are that you won’t get the funds you need for your structure.”
Time for the hourglass?
Despite so far being sheltered largely from the worst of the cuts, many legal departments are nevertheless looking to restructure their teams to make themselves fit for the future.
Kent Legal Services, for example, has sought to apply an ‘hourglass’ model in a bid to tackle what Director of Governance and Law Geoff Wild calls an “historical anachronism”.
“This goes back to the way in which lawyers are remunerated in local government, which is according to pay scales and progression against incremental points on pay scales,” he says. “Therefore most lawyers tend to stay put for a few years once they get settled in. They work their way up the ladder simply through length of service, rather than necessarily merit, and all bunch up together at the top of the pay scale. This is irrespective of the improvements in performance, the quality of service or the return on investment that the authority gets for their services.”
One of the effects of this, Wild argues, is to leave some quite seasoned and experienced lawyers at the top of the scale handling junior or mundane work that could be done at lower cost using different skill sets or types of staff.
“That’s a scenario that I guess a lot of authorities have in their staffing profile and something I wanted to change,” he says. “Clearly, we do need a number of very skilled and experienced senior lawyers to do the work that only they can do and we don’t want to cut back on quality or depth and range of skills. We want to keep that most certainly because that is part of our offering. But we don’t need as many of them and we don’t need those lawyers doing work which could be done lower down the food chain.”
The aim therefore is to have more staff at the bottom of the ‘hourglass’ who are keen to come up through the ranks. Clients will not see any differences, insists Wild. “In fact, they might even see an improvement in service because some people who have been doing the job for many years tend to get a little staid in their ways, a little bit blasé and show a little less attention to detail in some of these more routine things.”
At the heart of these changes is the idea of ensuring that particular types of work are handled at the right level by the right type of employee. Sacks says this is the approach that Staffordshire takes and is something she has implemented at previous councils she has worked for.
“At one authority I worked for there was a cry to have another solicitor,” she reports. “But I took a step back and asked what needed to be done. And when we looked objectively at the work and broke it down, we realised that we needed two legal assistants to do the more standard or housekeeping work. This freed up the solicitors to do more fee-earning.”
Two other factors – the move towards shared legal services (whether fully integrated or looser arrangements) and the growing number of local authorities seeking to increase the amount of work they handle for other public bodies – are also having an effect on staffing levels.
The trend for closer collaboration has, for example, allowed some teams to justify hires in specialist areas that if they were to do it on their own, would not stack up. WYLAW, the shared service between the five local authorities in West Yorkshire, is a case in point.
“What we have done in WYLAW is try and work out who has got what expertise and where the member authorities have got a gap,” says Bernadette Livesey, Service Director Legal and Governance at Wakefield Council.
Initially, this has led to the councils clubbing together to pay for a costs draftsman (based at Leeds City Council) – a move that has already paid for itself, according to Livesey. The five authorities have also changed their new staff contracts to allow cross authority working.
The WYLAW members are now in the process of establishing a post for a pensions lawyer, to be located at Bradford. “The authorities have a significant number of TUPE transfers and other work that affects pensions,” explains Livesey. “At the moment we have to pay heftily for that advice as it is very specialist.”
The consortium is also looking at whether or not member authorities ought to have more lawyers with higher rights of audience, so that they can reduce their expenditure on counsel. However, this process is in its infancy, admits Livesey.
Wakefield’s Service Director Legal and Governance highlights how the future shape of local government legal departments is being dictated by the changing shape of local government itself.
“For example, at the moment we are now trying to understand the public health agenda because of the recent transfer of responsibility to local government,” Livesey explains. “Nobody that I know in West Yorkshire has that health expertise. I can see a point where someone says we may need to recruit a specialist healthcare lawyer to work for all of us.”
To cope with these and other developments, many local authorities require a degree of flexibility in their staffing levels. This means that locum lawyers will stay as an important part of the landscape, and not just in those practice areas in which councils have historically found it difficult to hire, such as childcare.
“We are heavily engaged in both shared services and trading, and the trading tends to be outside of our immediate partnership,” says Philip Thomson, County Solicitor at Essex County Council. “Within that, we have a constantly changing level of work in nearly all topic areas. Inevitably what we tend to do, particularly for trading, is we front it with key people and if we have got some ‘business as usual’ work which needs covering, then we will bring in locums or other temporary staff to handle it.”
Essex Legal Services will often use locums, including more expert locums, where it has secured additional work – say under a framework agreement – until it fully understands the level of work it is likely to have going forward.
The service has also sought to develop its own network of temporary lawyers who have worked for it before and can hit the ground running.
Although the situation is not as bleak as might first appear, there is no doubt that local government legal departments will continue to face challenges.
Perhaps the greatest for senior management is to meet the desire of ambitious and able lawyers to advance their careers. As we have already seen in this supplement, three-quarters of lawyers would be happy to recommend local government for a legal career. However, they ranked career prospects – by some margin – as the least satisfactory aspect of their employment.
“To get promoted, it was always the case of ‘dead man’s shoes’ or you got on your bike and moved around to progress,” acknowledges Kent’s Wild. “To an extent that is always going to be there. Having said that, we are very much trying to build in a path so there is career progression based upon developing and acquiring certain skills, experience, knowledge and proven performance.”
Wild says those criteria will also allow the department to, if not promote, then reward staff for that ability. He recently promoted two junior members of staff above their senior colleagues “simply because they were the best”, a move which he said had sent out a strong message about what it would take to get on within Kent Legal Services. “I have used them as a role model for others,” he says.
Traditionally, the problem of limited opportunities for career progression has been an issue for smaller legal teams, particularly those at district councils.
However, Michelle Sacks believes that even in those authorities it is still possible to get ahead. “If you work hard, think creatively and try to resolve problems in a positive way, you become an asset to the team and the authority and one that they will not want to lose.”
Partly in a bid to address the limited opportunities for promotion, a number of local authority teams are considering how to incentivise their lawyers.
“When people see a more senior position somewhere local, the reality is that they will apply for it,” acknowledges Wakefield’s Livesey, who believes that expertise is not always recognised sufficiently within local government.
“Traditionally, local government pay scales are structured on how many staff you manage,” she says. “Sometimes I don’t want my lawyers managing staff, I want them being the experts in their field. Local government does not always recognise that within its equal pay systems.”
This is a nettle that Essex Legal Services is also seeking to grasp, says Thomson. He acknowledges that there may well be cultural issues for an organisation to face, with colleagues in other departments working just as hard. There is also the downward pressure on pay in the public sector generally.
But he adds: “We are increasingly thinking about how we incentivise our staff and we do want to work towards a more commercial basis, including profit sharing to a degree. For example, our office is set quite stretch targets at times and if we exceed those targets, then how can we recognise that for staff in a tangible monetary way?”
This need is exacerbated where departments that trade are asking their staff to be flexible about where and when they work. “We will probably move in the not-too-distant future to some form of financial reward for major contributions to the business activity of the office,” says Thomson.
A further challenge he identifies will be to develop a cadre of corporate lawyers in local government. This is especially acute at a time when the law has become increasingly complex and – as the survey for this supplement shows – most lawyers would very much prefer to be specialists, rather than generalists.
“As a young lawyer, I was exposed to politicians and how they and the organisation work from quite an early stage in my career,” Thomson says. “Lawyers are now seen as doing a particular function, and not necessarily part of what makes the corporate organisation tick. It is an unfortunate place we find ourselves in at the moment.”
As law moves away from the corporate centre, he argues, local authorities are increasingly finding it difficult to find lawyers with the right level of corporate expertise and knowledge of working with members.
Courses can help, but it is the day-to-day exposure that really provides the training ground. “This will ultimately give you not just the legal knowledge but the wisdom you need to work effectively at that level,” Thomson argues. “Knowing the law is not enough, that much is for certain.”
At Essex Legal Services, trainees are offered the opportunity to spend a seat with him and other members of senior management to give them an insight into corporate work. This is undoubtedly helped by the fact that the team handles a lot of this kind of work for other authorities.
Thomson says: “The focus of lawyers currently is more on developing their legal career in a more traditional sense, around their subject area or specialism. It’s not on their radar [to be a corporate lawyer]. They do see a lot of the hassle as well that comes with the monitoring officer role.”
It is important to find a way back to the corporate top table and restore the profile of local government solicitors, argues Thomson (who is also vice-president of Lawyers in Local Government – the organisation created by the merger of Solicitors in Local Government and the Association of Council Secretaries and Solicitors). Developing this cadre of corporate lawyers is a key step if that is to happen, he suggests.
A third major challenge for local government legal departments is how to ‘grow their own’ lawyers. Relying simply on hiring people with relevant specialist legal knowledge from private practice undoubtedly has its downsides.
The Law Society’s annual statistical review for 2011/12 revealed that the number of trainee placements available at local authorities remained pretty stable at 60. This was up very slightly on 2010/11 (at 57) but a long way below the 100+ of a few years ago.
“Clearly private sector skills can be brought in to local government, but there does have to be a mix and if we are not going to train solicitors, that is quite worrying,” says Sacks. Staffordshire has two trainees at a time, and is considering whether to have a third.
“If you are growing your own, not only are you able to mould the individuals over that two-year training period, but they develop incredible loyalty to the organisation because they have been given an opportunity. That buys an awful lot of goodwill and many teams have to rely on that kind of goodwill to get through really big peaks of work. You find many lawyers are in the office by 7.30am and there until 6.30-7pm.”
A particular benefit of training your own is to plug gaps in hard to fill practice areas, such as childcare, planning or procurement, where there is a real desire to have lawyers with in-house experience.
What appears to be happening is that an increasing number of local authorities are taking on – as paralegals – graduates who have completed their professional qualifications (including the legal practice course). After an initial period of, say, two years, they may then be offered the opportunity to become trainee solicitors.
Kent’s Wild has been working closely with universities in Kent to secure good graduates for this entrance route. “More and more I am looking for people who don’t have a wholly legal background and are less pre-programmed in the ways of working and thinking.”
The Kent team is also looking for other students further down their career path to come in as trainees. “We haven’t had a trainee here regularly for a number of years,” Wild admits. “When I got my training contract in 1984, I worked for the Greater London Council and in my year they took in 20 articled clerks. I just thought that was normal and I didn’t know any different. Now I realise that was truly exceptional. We have a real opportunity here to develop our own lawyers.”
He adds: “We want to grow our own because I’m not particularly happy with the way in which we are having to recruit unknown and untested lawyers in the market at the moment. You never truly know what you are getting until some six months after they have been here, by which time it is too late.”
Loyalty to the sector
Like Sacks, Wild hopes that this approach will encourage loyalty to the local government sector. “Hopefully we will turn out some decent quality staff who will then go elsewhere and spread that. We are not expecting them to stay for life, but with a grounding and training in Kent they can go on to even bigger and better things.”
Essex Legal Services has adopted a similar approach in looking to hire paralegals with the potential to become – under its career progression scheme – trainee solicitors further down the track. It has not advertised for trainee solicitors for several years.
“Some law firms have a policy of definitely not allowing paralegals to become trainees but I think we have to be realistic in terms of the current position,” says Philip Thomson. “It would seem wholly inappropriate to say we are not going to recruit those that have passed their professional examinations as paralegals. Why wouldn’t we choose people who have worked for us and proved themselves over a period of time to be our trainees?”
He also points out that by the time Essex’s recruits have been a paralegal for two years, they have acquired considerable legal knowledge before embarking on a traineeship. They will also typically benefit from a Law Society exemption that means they only need a further 18 months to qualify, rather than the full two years.
“Normally, they are much better equipped to be solicitors when they finish,” Thomson suggests. “What we have found over the years is that – almost without fail – we have given each trainee a job as a solicitor at the end of the traineeship. After three-and-a-half years they are often extremely committed to working for us and are at a high level of potential as a solicitor.”
Wakefield also ‘grows its own’ as the last three trainee solicitors there have all been in-house paralegals first. “As a result they are very committed to the council and see their future here,” says Livesey, who also encourages junior and administrative staff to train as legal executives. Currently there are four studying for those qualifications.
There is a consensus, though, that far more could be done to promote local government law as a career among students.
“People are almost completely unaware of the opportunities in the public sector – that is the stark truth, but it has always been thus,” says Wild. “When people think of a career in the law they do not think of the public sector, whether central government or local government. They don’t even think of commercial in-house work.
“The only real face of the profession that is widely known about is the private sector and that’s naturally where people look first for their careers. So we have got to do much more in raising the profile and the image and the relevance of the public sector as a place people can build exciting, rewarding, successful careers.”
Thomson agrees. “This might be contentious but I think the universities might be in a different place from the students,” he argues. “The students see the reality and are supportive of schemes such as ours and are interested in a variety of legal careers, whereas the universities are very focused on getting their students on traineeships with the top City firms.”
This could have something to with maintaining the standing of the university, he acknowledges. “I’m not being critical but I think that there might be a bit of a gap between what the universities want for their students and what the students want for themselves. What the students want is an opportunity to launch themselves in a career in law.”
The reality too is that the bulk of the legal market in terms of numbers does not work for the large City firms and that rewarding careers do lie elsewhere.
“Universities need to do more to understand the wider career opportunities that are available,” says Thomson. “If you are involved in a major organisation like Essex County Council or a big government department and get to a level of seniority bringing you into contact with the politicians and everything else, that alone can – although arduous at times – be a very stimulating environment.”
In addition to becoming more attractive to graduates, there is scope too for local authorities to benefit from the revival of interest in apprenticeships and earn-as-you-learn routes, such as legal executive qualifications.
As Jenny Pelling of the Chartered Institute of Legal Executives explains elsewhere in this supplement, there are now school leaver entry points with apprenticeships at Level 2 in Legal Administration (GCSE), Level 3 Advanced Apprenticeship in Legal Services (A-level standard), which is being developed for this autumn, and the recently launched Level 4 Higher Apprenticeship in Legal Services (first year degree standard).
“Essex as a council has been active generally in promoting apprenticeships,” says Thomson. “We have not done it yet in legal services, but we are aware of recent developments and we have had some discussions with those organisations responsible for organising apprenticeships and how far they might extend into having a legal career. It’s something that is on the horizon.”
Wakefield meanwhile has two apprentices and is looking to increase that number, reports Livesey.
Still alive and kicking
As Livesey has said, the future of local government legal departments will depend to a large extent on the future shape of local government. But even though job security may not be as great as it once was, there will still be plenty to look forward to.
“In a way it’s quite exciting,” adds Essex’s Thomson. “I am absolutely convinced, and I say this to all my young colleagues, that while there are difficulties, actually it’s a time of great opportunities for significant career development and good remuneration, particularly for those who can work through the solutions and come out the other end.”
Philip Hoult is Editor of Local Government Lawyer