How much should trainee solicitors be paid?
Rob Marrs, senior policy and development manager at the Law Society of Scotland, ponders the age-old questions around trainee pay.
If you were to ask the person next to you on the bus ‘how much do you think a trainee solicitor earns?’ it is likely they would guess incorrectly. They may guess the average graduate wage (depending on who you listen to it is £26-29k per year). If not, they’d certainly guess at least the average wage for a worker in the UK (around £24k).
In both instances they’d be pretty far off the mark. The average trainee in Scotland earns – in first year – around the recommended rate of £17k and – in second year – around £20k. We know that most trainees are paid at or above those rates but some – it is a recommendation after all – are not.
The Society has, for decades, set a recommended rate of remuneration for trainees. The recommendation is based on a number of factors – the current rate, data from the Cost of Time survey, other graduate salaries, inflation, and the invaluable input from Council and Committee members about current practice conditions.
A lose-lose situation
It is rare that policy advisors anywhere can advise anyone to use the Taylor Swift tactic of ‘’Shake it off’ but that is where we are with the recommended rate. This is because whatever Council does, a group somewhere in the profession will offer strident criticism. They literally cannot win. It’s difficult to please anyone - let alone everyone - when it comes to trainee remuneration.
A few years ago, when the Council said it would no longer register contracts that purported to pay less than the National Minimum Wage (NMW), we got phone calls complaining that this was a retrograde step and bad for new lawyers.
People searching for a traineeship angrily asserted their ‘right’ to work unpaid and claimed that we were unfairly blocking their route to qualification. This may seem unbelievable, but there we are.
To this day, we get polite letters asking us whether or not we could consider moving to the minimum wage for apprenticeships. You don’t want to know what apprentices can earn per hour.
If the Council decided to scrap the recommended rate (as the Solicitors Regulation Authority has done in England and Wales), people would complain about us starting a race to the bottom. The Junior Lawyers’ Division – a kind of English and Welsh version of the Scottish Young Lawyers Association (SYLA) – have criticised the SRA for this decision.
Whilst some are concerned about such a policy triggering a race to the bottom, others argue that the recommended rate at present depresses salaries for some trainees. They think firms might pay more but they choose to go with our recommendation. Those voices will say that there has been no race to the bottom in England and Wales, but that view only really takes into account the ‘Square Mile’.
If Council opted to freeze the rate, then trainee solicitors complain that their firms won’t up their pay unless the Society lifts the rate. Ultimately, it is false to argue that it ‘is just a recommendation’ because so many people do take it seriously.
If the rate is raised by anything at all, some will complain that this is out of kilter with the realities of practice.
Only last week at a conference, one member was very keen to tell me that the recommended rates were simply unrealistically high.
Some members, though, want us to more than raise the rate. Rather, they want us to raise it substantially – towards something close to the average graduate salary. If we do that, it is potentially the case that trainee solicitors will be more expensive in the market than qualified solicitors. At that point, there is no incentive to train a solicitor for many organisations.
Not all practices are the same
And that’s before we consider the differences between practices and practice areas. We know all too well the difficulties that the criminal bar faces even if lots of new lawyers want to become criminal defence lawyers.
Given the nature of the business model of a criminal defence firm, a trainee being paid at the recommended rate plus partner-time training, plus TCPD, plus office equipment and other overheads is a significant cost.
Analysing the economics of such firms, some would say ‘well you should lower, or at least freeze, the rate’. Others would argue that plays into the Government’s hands, that it makes the Society’s representations to government stronger on legal aid rates if we can say ‘it is all but impossible for firms in the legal aid sector to pay the recommended rate’. They would further argue that by freezing or dropping the rate, we are making life easier for the government and undermining our own arguments.
We need to look ahead
And that’s just the here and now. The Council, though, needs to think a little further ahead. They are aware that the LLB is a high quality degree and equally aware that graduates of the course are well regarded in other sectors that can offer better remuneration at the early stages of a career.
There are still more people doing the Diploma than there are traineeships (though in recent years the gap has narrowed considerably). How, though, do we ensure the very best graduates of the LLB choose to stay and practise in Scotland? Competition from other industries is tough. Scottish LLB graduates are exempted from a lot of modules in England and Wales should they wish to convert at that stage.
We may be losing talent that we’d otherwise wish to keep. We shouldn’t just be asking ‘are we attracting enough people’ (we are) but also ‘are we retaining the best people?’ The answer is probably yes but the average salary of a Scottish trainee solicitor is unlikely to be the motivating factor. Luckily, from our research, finance isn’t the main reason why LLB students want to become lawyers, but can we rely on this over the course?
What kind of profession do we want to be?
The big question is: ‘what kind of profession do we want to be?’ Council agreed, at its April meeting, to move its position on minimum trainee salaries over the next couple of years. At present, we reject any training contract that purports to pay less than the National Minimum Wage. We’ll move to a position where we will reject a training contract that pays less than the living wage (outside of London) over the next couple of years. From the figures we have right now, that may price a very small number of organisations out of the traineeship market.
But does the profession really want to tolerate a system where a graduate of an LLB, in possession of a Diploma, is being paid the lowest possible amount allowed by law?
The overwhelming majority of firms pay at, or above, the recommended rate. The small number who don’t do so tend to pay above the living wage but below our recommended rate. A far smaller number again pay between the NMW and the living wage. In reality, most of those firms would find a way to pay the living wage (just as there was no real dip in traineeships when we introduced the NMW policy despite some doom-mongers predicting that traineeship numbers would plummet).
It would be easier for the Society to stop setting the rate and just let the market decide. We’d get less criticism from members. Indeed, we could just turn any ire we got from students and government back on to members ‘pay is a matter for the profession – speak to the firms themselves’. We don’t want to do that. Any such move would mean those on the route to qualification would have no idea what they might expect to earn in the future. Would that be better for trainee solicitors? Probably not. Would that be better for the future of the profession? Again, probably not.
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