A year in the law 2012-13

There's something about this time of year (the change of season perhaps) that prompts reflection over the previous 12 months. Courtesy of just published Best in Law, we offer you here a synopsis of some of the biggest and most interesting legal toing and froing that 2012-13 had to offer.

Change - happy to embrace it or prefer to stick your head in the sand? Many practitioners and firms have been asking themselves the same question over the past year, as they work out where they stand in relation to reform - of legal aid (unpopular), litigation (unproven) and legal education and training (unclear). In the same reforming mood, there has also been a focus on new routes into the profession, with apprenticeships and the Chartered Institute of Legal Executives (CILEx) at the forefront, and new ways of making the law fit the demands of the Internet.

Added to which is ongoing economic turbulence - things are perhaps a little calmer than last year, but there is a strong sense that we're certainly not out of the woods. There has been some cautious optimism about a strengthened economy, but the vicissitudes of the national and global financial systems continue to have a profound impact on almost every sphere of professional life - see our earlier Feature, The commercial year 2012-13, for a useful overview of the big business stories over the past year.

For now, digest this review of what's been preoccupying the legal world and its inhabitants over the past 12 months or so and what may be on the horizon for 2014.

Legal aid in crisis

Headlines in 2013 were dominated by the precarious state of the legal aid system and the concerted struggle by the profession - united as never before - to save it from the best efforts of government to strip it down to its barest bones.

Amid significant controversy, and to the profound disappointment of many in the profession, the Legal Aid, Sentencing and Punishment of Offenders Bill came into force in April 2013. Championed by Justice Minister Chris Grayling (former BBC producer and non-lawyer), the reforms include cutting the legal aid budget by £350 million and scrapping legal aid across many areas of law, including most private family law, social welfare law, education and employment.

The reforms have been slammed by almost the entire legal profession - barristers, solicitors and judges have spoken as one to oppose the proposals, protesting on the street, organising online petitions and making direct appeals to government. In just one week in May, the Legal Services Consumer Panel branded the cuts "unfair and likely to damage the quality of representation in courts and police stations"; retired judge Sir Anthony Hooper said that judges throughout England and Wales were "extremely worried" about proposals to auction off criminal defence work to the lowest bidder; and hundreds of lawyers came together to protest outside Parliament, standing in front of a coffin marked "RIP Legal Aid".

Cheeringly, some progress was made in the second half of 2013. In June, after meetings with the Law Society and criminal practitioners, Grayling announced that he would allow choice of solicitor to continue. In July he was summoned by the House of Commons Justice Committee to examine the proposed cuts for a second time and, in September, he announced that plans to introduce price competitive tendering would be scrapped. The profession hopes that more U-turns will be forthcoming.

Nevertheless, there is no doubt that this a very challenging time for the legal aid sector - two criminal defence firms (Challinors and Carney Solicitors) went into voluntary administration in August 2013. Law Society Head of Legal Aid Richard Miller said: "This serves to underline the point we have been making to the Ministry of Justice, that firms undertaking criminal legal aid are economically vulnerable - even at current rates of remuneration."

So firms, chambers and students have the right to be worried about a professional future in legal aid; but more than that, it is something that everyone who cares about access to justice should oppose.

A love LETR to law

Pessimists believed that the day would never come, but after two years of research, punctuated by anticipation (and much delay), the Legal Education and Training Review (LETR) research report was finally published in June 2013, broadly stating that while the current system is not "fundamentally broken", there is room for improvement.

The background is thus: in June 2011 the three leading legal regulators - the Solicitors Regulation Authority (SRA), Bar Standards Board (BSB) and ILEX Professional Standards - commissioned the UKCLE Research Consortium, led by Warwick University's Professor Julian Webb, to prepare the report. This was an acknowledgement that the legal profession is in the midst of significant change (eg, the advent of alternative business structures (ABS) and legal aid reforms).

The result of this collaboration was the 335-page report, which recognises that while the existing system offers a good standard of legal education and training, there are a number of ways in which quality, accessibility and flexibility must be enhanced to ensure that it remains fit for purpose in the future. The report sets out 26 key recommendations, including that standards be established for the knowledge, skills and attributes of those entering the profession; regulators consider more focus on ethics and professionalism; commercial awareness and communication skills become part of legal education; and training policies reflect the fact that many more people will enter the profession through apprenticeships, as paralegals and on work experience placements.

All eyes now turn to the regulators to see what they will do with the report - SRA Chair Charles Plant, for example, said that there are areas "that need addressing if we are to ensure that legal education and training remain fit for purpose in the radically altering world of legal services" - but there is no expectation that radical change is imminent. Our favourite quote was from Legal Futures' Neil Rose, who said that the report was greeted by "a collective ‘meh'", while Professor Richard Moorhead said that "everyone is happy with [LETR], but nobody is smiling". Still, one to keep an eye on.

Impressive ABS

The first ABS was granted its licence nearly 18 months ago now, so these new kids on the block are no longer so new. Still, the profession at large continues to watch as fresh-faced entrants from unlikely sectors continue to arrive, unsure of the extent of the impact they will have and how they will mesh in with the old hands.

To recap, ABSs (ie, law firms that allow both lawyers and non-lawyers to share the management and control of the business, as well as allowing for external investment) were introduced by the Legal Services Act 2007. The SRA began accepting applications in January 2012 and the first three licences were issued in March 2012. As at August 9 2013, the SRA had granted over 100 licences. Russell Jones & Walker (the first foreign-owned ABS), Irwin Mitchell, Direct Line and many others have thrown their hat into the ABS ring. In March 2013 BT was granted an ABS licence for its motor claims business and media firm Schillings secured two ABS licences. In 2013 both KPMG and Ernst & Young indicated that they were considering applying for ABS licences.

One of the key players on the ABS scene remains The Co-operative Bank (or rather, its legal arm, The Co-operative Legal Services). In 2012 it announced plans to offer its services through its 300-plus bank branches and to create 3,000 jobs in the legal sector. In 2013 it launched its telephone advice service for people who are eligible to receive legal aid, as well as a face-to-face service across 78 branches nationwide. But the developments weren't all rosy - it announced in April 2013 that it was pulling out of a £750 million deal to buy 632 high-street branches from Lloyds, which would have housed its legal services. The deal's cancellation was welcomed by the many high-street law firms which face stiff competition from the Co-op offering.

Eddie Stobart has kept on trucking, adding Stobart Barristers to its fleet in 2012 and offering an intermediary service that directly links barristers to businesses and members of the public, on a fixed-fee, ‘pay-as-you-go' model. In 2013 it was granted an ABS licence to set up a firm of solicitors. When your logistics companies start offering legal services, you know that we are moving into a new era of legal service provision.

It remains anyone's guess what the ultimate impact of the ABS movement will be. Not everyone is a fan - president of the UK Supreme Court Lord Neuberger,  speaking in February 2013 to the Association of Liberal Lawyers, said that ABS and the associated external investments required rules in place to stem the risk of the "unyielding tentacles of self-interest". He also warned that the market liberalisation must not result in a "free-for-all". Whether you find yourself working for one of this new breed of firm, or within a more traditional set-up that has had to evolve to stay in the game, you ignore the rise of the ABS at your peril.

Law and social media: uncomfortable bedfellows?

Barely a day has gone by this year without the interplay between social media and the law being mentioned in the press or, fittingly, online. As we all strive to negotiate the new rules of online interaction, the law looks increasingly unable to keep up.

June 2013 saw the release of final guidelines for prosecutions involving social media communications by the director of public prosecutions, Keir Starmer QC. Following a three-month consultation, Starmer set a high threshold for social media communications to be considered worthy of prosecution, to prevent the new guidelines from chilling freedom of expression. The guidelines distinguish between communications which might be seen as distasteful and even offensive without being worthy of prosecution, and those which amount to a credible threat of violence, targeted harassment or other forms of hate crime. Starmer said: "Millions of communications are sent via social media every day, and prosecutors must be equipped to deal appropriately and consistently with cases arising from the growing use of these new ways of communicating." With the headlines dominated in July and August 2013 by an alarming number of rape and death threats on Twitter, and by links between malicious comments on Ask.fm and one teen's suicide, the guidelines may find themselves much used over the coming months.

Even this year's essay competition held by the Law Society's Junior Lawyer Division homed in on the issue, asking student, paralegal and trainee members to "Discuss the current and future effects of social media technology on civil and/or criminal litigation, including what steps litigators will now have to take to protect their clients' positions".

The Bar, too, was grappling with the new online frontier. In September 2012 the chair of the Bar Standards Board (BSB) urged members to embrace social media in order to improve communication on controversial issues, among other things. Baroness Deech suggested that the Bar should use Twitter and blogs more often as a counterbalance to negative publicity from other media sources: "We should be doing more of it, because of the speed of getting out our version of events. Once the wrong story gets a hold, it's very hard to dislodge - you've got to deny it within minutes, otherwise it's all over the place."

Jackson shakes things up

Widely thought to be the biggest change to the court process and litigation in the last decade, on 1 April 2013 reforms to the Civil Procedure Rules (CPR) came into force. Known as the Jackson Reforms (after Lord Justice Jackson, who authored the 2010 report suggesting the changes), they will have a significant impact on specific practice areas such as personal injury, but also on the way that all litigation is funded and conducted.

One of the biggest changes is the prohibition of any success fees or after-the-event (ATE) insurance premiums from the unsuccessful party under conditional fee agreements (CFAs), which will make them a much less attractive option for clients. Pippa Manby, barrister at 4 New Square specialising in professional negligence work, had this to say about the fact that success fees and ATE insurance are no longer recoverable: "We have heard rumours that as a result, many agreements were entered into hastily before 1 April - no doubt there will be drafting issues and also claims relating to whether it was appropriate to put a particular claimant on to a CFA in light of the new funding options."

Alexander Robson, barrister at Littleton Chambers, adds: "Parties now need to agree at the outset what the budget is going to be, write it down and present it to a judge who will decide whether it is reasonable. Once agreed, you're likely to be stuck with it, even if you spend twice the amount of time predicted. It means that there will need to be more costs planning at an early stage and, inevitably, more price pressure."

The (legal) apprentice - you're hired

Apprenticeships remained big news over the past year, particularly with the launch in March 2013 of the Level Four Higher Apprenticeship in Legal Services. The programme marks the beginning of a new vocational pathway for paralegal careers in personal injury law, insolvency and commercial litigation. It was developed by Skills for Justice, CILEx and Damar Training, is equivalent to the first year of a university degree course and is a pathway to becoming a qualified paralegal. Apprentices can then progress further to become a chartered legal executive, while currently employed paralegals are also welcome to use the apprenticeship programme to improve their skills.

With the LETR specifically saying that more on-the-job flexible training should be available, the apprenticeship movement is gathering momentum. Several firms have signed up to Manchester Law School's new Higher Apprenticeship in Legal Services programme, which will allow over 100 school leavers to enter the legal profession. The law school, in partnership with CILEx, will provide the new apprenticeships, and a number of firms in the Northwest have signed on to train the new apprentices, including Weightmans, Pannone and Hill Dickinson.

In the first few months of 2013, Winckworth Sherwood appointed its first three apprentices and DAC Beachcroft launched an apprenticeship programme. In August two national firms, Shoosmiths and Addleshaw Goddard, announced details of their new schemes. BPP Law School also introduced 10 new work-based training programmes in a variety of subjects, including law. The programmes will enable students to follow career paths typically accessible only via university. BPP CEO Professor Carl Lygo said: "Apprenticeships are now a real route into the professions and a positive step forward for Britain in educating a workforce who can hit the ground running. They also enable employers to access otherwise untapped, under-represented pools of talented recruits with the talent to thrive in professional services."

Golden glow for CILEx

Celebrating its 50th year, CILEx has been very vocal and visible over the past 12 months, further cementing its position as the third branch of the legal profession. The announcement in July 2013 that chartered legal executives can become coroners was just more step on its upwards trajectory. Since 2008, chartered legal executives have been able to apply for judicial appointments, including district judge posts as of 2010. In May 2012 it also decided to introduce a legal version of the Hippocratic Oath - which binds medical professionals serving the public to an ethical standard - for its new graduates. Nearly 500 CILEx members achieved lawyer status during 2012, of whom 150 attended a ceremony and swore the oath in May 2013.

CILEx has also been at the heart of the LETR (as above) and the apprenticeship movement (also above - in fact, former apprentice Stephen Gowland became the first dual-qualified president of CILEx in 2013), and has been a vociferous critic of the worrying erosion of the legal aid system. As the profession continues to try to address diversity and access, the CILEx option is likely to become ever more attractive, offering the chance to earn as you learn.

Graduating to university

Becoming a university was a popular move in 2013, with two of the United Kingdom's most well-regarded law schools graduating to become universities. In November 2012 The College of Law (CoL) became The University of Law (ULaw), having been granted full university status. The new ULaw announced that the university title "recognised both the institution's many years of growth and its prominent role in legal education". This followed on from the sale of the former CoL earlier in 2012 to investment company Montagu Private Equity for approximately £200 million.

In August 2013 BPP Law School announced that it had been awarded university status, following confirmation by the Department for Business, Innovation and Skills (BIS) that the provider met the criteria for the title. It is the first publicly owned private company, rather than a charity, to be made a university.

Just in case

Several headline-grabbing judgments in 2013 deserve special mention. The long-running "right to die" case come to a head in August when the Court of Appeal ruled that it has no power to grant people the right to voluntary euthanasia and that it this a decision for Parliament to make. The finding related to Tony Nicklinson (who died last year, but whose wife Jane continued the case) and Paul Lamb. Both sufferers of incurable degenerative illnesses, Nicklinson and Lamb sought assurance from the courts that it would not be unlawful for a doctor to assist them to die, or a declaration that the current law on murder or assisted suicide is incompatible with a right to respect for private life under the European Convention on Human Rights. Lord Chief Justice Lord Judge said: "The short answer must be, and always has been, that the law relating to assisting suicide cannot be changed by judicial decision. The repeated mantra that, if the law is to be changed, it must be changed by Parliament, does not demonstrate judicial abnegation of our responsibilities, but rather highlights fundamental constitutional principles."

An oil trader's attempt to conceal his wealth inside a company was defeated in June 2013 by a Supreme Court ruling that closed a potential loophole in divorce settlements. In a unanimous judgment, the seven justices upheld an appeal by Michael Prest's ex-wife, Yasmin Prest, who sought a share in several properties in London and the West Indies. Delivering the ruling, Lord Justice Sumption said that the "husband had deliberately sought to conceal [that the properties were held for him] in his evidence and failed to comply with court orders with particular regard to disclosing evidence".

In May 2013 Marks & Spencer lost a five-year legal battle with Interflora after it bought Google advertising space linked to searches for the flower delivery network's name. Mr Justice Arnold at the High Court ruled that M&S's use of the Interflora trademark to advertise its flowers and gifts range constituted trademark infringement. He said the M&S ads did not enable "reasonably well-informed and reasonably attentive" internet users to work out whether the company was part of the Interflora network.

And we couldn't fail to mention some of 2013's most important legislation, certainly in terms of a reflection of social mores. The government's controversial bill on same-sex marriage became law after it received royal assent on 17 July 2013. The Conservative, Labour and Liberal Democrat leaderships all backed the Marriage (Same Sex Couples) Bill, which was finally approved by MPs and peers.

The future's not ours to see

So what will be keeping the legal profession up at night and filling the pages of broadsheet law sections in 2014? We can't predict the future, but we can pose some relevant questions:

• The fight to save legal aid will continue, with the effects keenly felt and not just by those operating directly in the publicly funded field. Will criminal barristers switch to other practice areas, squeezing the market for those already there? Will travesties of justice occur? Will the creators of these short-sighted cutbacks listen to those who are at the frontline? We certainly hope so.
• ABS and their breed will continue to gain momentum and force the profession to confront the uncomfortable truth that change is nigh. Will it be a case of adapt or die? Will the Co-op be the great innovator it promised to be, especially in light of its recent financial troubles?
• With ever more routes into the profession, both real (apprentices) and theoretical (LETR), what will the next few years bring for new entrants? If there are options beyond the training contract and pupillage, will people take them and how will firms/chambers feel about the alternatives? Most employers profess an interest in a diverse profession - could this be one way for them to put their collective money where their mouth is?