As ‘continuing competence’ becomes the mandatory professional development mantra, can the SRA just accept a solicitor’s pledge that they have put in the necessary work? Eduardo Reyes reports.
Lawyers are grown-up, honest and reflective professionals whose keenness to remain at the top of their game is held in check only by the number of hours in the day and the intrusion of client instructions. That, broadly, is the proposition that sits behind the new training regime for practising solicitors.
Out goes the long-established requirement for solicitors to complete 16 hours of training, study and events that had been accredited for Continuing Professional Development (CPD), each with a code they must record for checking by the regulator. In comes a successor regime where the Solicitors Regulation Authority takes a solicitor’s word for it. Send the SRA the following simple confirmation, and you’re done: ‘I have reflected on my practice and addressed any identified learning and development needs.’
Anything that addresses self-identified learning needs can count. That learning, interspersed with further reflection, should in turn prompt solicitors to consider further learning needs, hence the stress on ‘continuing’.
A transition period, whereby solicitors could choose between the old and new regimes, ends on 1 November.
The moral hazard here is obvious – a time-short, cash-strapped solicitor, firm or legal department opts not to reflect and train, but swears that they have done so. Surely the risk that standards will drop, that the change is dumbing down, is clear and present?
As Tony Roe, principal of Tony Roe Solicitors and a committee member of the Law Society’s Small Firms Division, puts it: ‘Continuing competence has been heavily criticised as sending the wrong signals to the public. Smaller firms often find it more difficult to deal with constant regulatory change.’
Maybe. But the outgoing regime of accredited CPD hours can hardly be held up as a guarantor that training was universally relevant. Commercial training companies routinely saw a surge in bookings in the run-up to the deadline for completing the prescribed hours, and it was common to find solicitors on courses where the subject matter was irrelevant to their own specialism.
CPD hours were routinely the butt of jokes at such courses. As one QC quipped when addressing a full conference room: ‘In an age when you can get CPD points for watching a video of Bianca Jagger giving a speech, it’s nice to see so many of you here.’
Any system open to ridicule must be a candidate for reform. Lawyers at firms or legal departments that had already taken on board a modern executive training culture dedicated far in excess of the minimum of knowledge and skills training; for the less committed, the CPD hours requirement could be met in cheap yet inappropriate ways. Hence real-life examples of personal injury lawyers sitting through a day of legal updates on residential conveyancing.
As a result, the Law Society, the SRA and specialist training providers now judge the risks of continuing competence to be low. Jenny Crewe, strategic policy manager at the Society, says: ‘Only the most short-sighted of firms will be reducing the time and money allocated to training as a result of changes. The firms we have spoken to think the changes will enable them to make training more relevant, efficient and flexible.’
‘Half the firms implemented it a year ago,’ SRA director Crispin Passmore notes. ‘Lots of firms we are asking about it say it’s what they did anyway – they just had to do 16 hours’ CPD on top. There is lots of support with huge numbers of webinars which have gone down really well.’
Holistic and creative
Passmore’s point is supported by Patrick McCann, global head of learning at Linklaters. ‘I welcome the fact that the new regime now allows solicitors to take a more holistic, and creative, approach to their own development which this firm supports with a wide variety of opportunities,’ he says. ‘Linklaters would expect our lawyers to undertake at least the same level of learning activity as before the change, and possibly even more given the wider view they will now be taking to meeting the SRA’s competency requirements.’
‘The SRA regulations seek to establish public-protecting competence among the solicitor profession,’ McCann observes. ‘We’d see the work we do, the clients we serve and the competitive nature in which we operate as requiring a service standard some way above and beyond that. We have built, and will continue to provide, a range of development opportunities which would exceed those minimum requirements.’
‘We know most people who have looked at this have found it fairly straightforward,’ observes Nicole Poole, policy officer at the Law Society. ‘Internal processes may need to change a bit, which is more work. But continuing competence is not complex in itself.’ Because they no longer have an hours requirement, ‘the concern was that solicitors could fall foul of the rules [without knowing],’ she adds. But if all else is fine at the firm, that concern is now misplaced.
So far, so good. But as the old CPD regime was mandatory for all solicitors, a whole cottage industry grew up around it. Solicitors may be ready to make the mental switch required, but for the training ‘industry’ adjustments are necessary.
Mark Solon, managing director of training provider CLT’s owner Wilmington Group, says that adjustments were planned before continuing competence commanded the profession’s full attention. ‘Changes in training and education need to be seen in a wider context,’ he explains. ‘Solicitors have seen so many changes – professionally, in the economy, with cuts to legal aid, the emergence of ABSs. Getting to grips with the new regime is not a top priority right now.’
Changes at CLT include the creation of an online ‘portal’ for clients that prompts users to ‘reflect’ on their training needs, ‘select’ training to support the need identified (whether from the company’s own courses or elsewhere), and ‘collect’. The collection refers to information on training completed being saved in a secure respository.
The repository meets two needs: first, where a law firm or legal department wishes to monitor its solicitors’ activity and progress this can be checked; second, the information can be shown to the SRA if it has concerns. The SRA recommends that a record of training completed, together with the reasons it was undertaken, should be preserved for six years.
This last point is important. For while the SRA’s Passmore says, ‘we just don’t want to go out and check whether people have done a certain number of hours’, under the outcomes-focused principle that underpins its regulatory approach, when other risks prompt an investigation, evidence of continuing competence will be scrutinised.
Under the new system, there is no requirement to attend courses or learning by approved providers and, as such, there will no longer be any approved providers of CPD courses. There is also no requirement for the completion of a certain number of hours and there are no longer any specific allowed activities. Anything that is done to address learning needs can count towards continuing competence.
Instead, solicitors are expected to review their learning needs and address them through CPD activities. They are then asked to reflect on the learning and look at ways they can incorporate this into their practice. This should, in turn, lead to a further review of any other learning needs.
From 1 November 2016, any solicitor with a practising certificate is expected to comply with the continuing competence scheme. This includes retired solicitors who maintain a practising certificate, Registered European Lawyers but not Registered Foreign Lawyers.
The SRA have set out in their guidance the process they expect solicitors to undertake. ‘Reflect on your practice to identify any learning needs. You may wish to have reference to the Competence Statement while doing this. It is important to remember that the Competence Statement is generic and you will need to apply it to your particular practice in a practical way.
‘Plan how you will address your learning needs, identifying suitable CPD learning activities and how you will carry them out.
‘Complete the CPD learning activities.
‘Evaluate how the CPD learning activity has met the learning need you identified and how you can incorporate the new knowledge and skills into your practice.
‘Record how you have carried out this process. The record demonstrates that you have taken steps to ensure your ongoing competence. You may wish to use the forms that the SRA have made available through their online toolkit.
‘Make an annual declaration to confirm that you have completed the process outlined above. “I have reflected on my practice and addressed any identified learning and development needs”.’
Source: The Law Society
Passmore explains: ‘We are not worried how many hours’ training you do – we are worried about whether you deliver competent advice. If you are consistently giving poor quality advice the regulator will be interested, if you have made no effort to train your staff that will be an aggravating issue.’
The Law Society has also changed its offering. Content manager Helen Donegan explains: ‘The Law Society’s CPD Centre is being replaced with a new online learning platform called the Professional Development Centre [PDC] in November. The new platform will support members in meeting their requirements under the SRA’s new continuing competence approach.’
The PDC will allow solicitors to tailor their ongoing learning and development according to their own needs and the SRA Competence Framework.
‘Solicitors will be able to record their training against the SRA requirements, record their reflections on any training undertaken, and evidence their self declaration,’ Donegan explains.
‘They will be able to create personal development plans to identify what learning and development they need and where they wish to improve, and the PDC will suggest training in different formats to address the solicitor’s individual needs.’ It will be a ‘single online platform for solicitors to record all of their learning and development, as they will also be able to record and reflect on training they have taken with other training suppliers’.
Roe points out that the effect of the new regime is far from certain. ‘How full-scale introduction of continuing competence on 1 November will work remains to be seen,’ he says.
It has, though, acted to accelerate changes in the training landscape. ‘The days of six hours [sat] in a hotel room are probably over,’ Solon argues. ‘Probably the [future] model will be, step one – pre-reading; step two – a lecture, shorter and more to the point than it would have been previously; followed by some sort of assessment, and further contact with the course leader.’
While many law firms say, quite correctly, that they far exceed outgoing requirements, even for them the new regime involves a change in mindset. The emphasis, Crewe says, shifts from competence alone to a degree of competitiveness. ‘Reflective life-long learning is very common in other professions, particularly medicine,’ she says. ‘But pedagogically it is recognised as a much more efficient and effective way of learning than the more passive methods previously employed in education.’
Even primary school children are being encouraged to comment on each others’ work and respond to feedback provided by their teachers, Crewe points out. ‘So educationalists are saying yes to reflection, feedback, guidance, role-modeling and fostering a learning culture. In some ways, it’s a return to the old days when firms were much more involved in the development of their staff and there was less outsourcing of training.’
Such a stress on competitiveness could put the emphasis on a wider range of skills and knowledge. ‘Many lawyers have seen soft-skills training as secondary to black letter law,’ Solon notes, adding: ‘The point is that in a competitive environment, black letter law knowledge is almost taken as given.’
That point is echoed by Simon Osborne, chief executive of ICSA (the Governance Institute) which, he says, trains a growing number of solicitors who have governance responsibilities, or who advise those who do.
‘It is essential that lawyers develop a deeper understanding of company law and governance, and its implications,’ he says – a point of special relevance as more lawyers set up or work within alternative business structures.
‘Most law degrees don’t have a core module on company law, and most corporate lawyers, whether in-house or in practice, tend to specialise in areas of company law such as dispute resolution and transactions,’ Osborne adds. ‘However, they are increasingly also called upon to advise on wider issues that relate to, or overlap with, a company’s statutory responsibilities, director duties, board management and the company’s governance arrangements. They may also have oversight of the secretariat function within their organisation.’
Up and away
Any compliance requirement can act as a distraction – creating extra work, and giving a regulated person a false sense of security. As with all aspects of principles and outcomes-based regulation, the shift to continuing competence is intended to make solicitors think about their needs, their role and the risks they incur.
Whether the design of the continuing competence regime will achieve that is not certain. ‘It’s too early to answer this question,’ Linklaters’ McCann says. ‘The guidance is at this stage relatively wide and possibly vague. It will only be after experiencing the new regime for at least a couple of years that the challenges in complying with it will become more obvious. I anticipate that further guidance will be requested, and with any luck forthcoming in the mid-term future.’
The new regime ‘is not an excuse to do nothing’, Roe stresses. A poor training and education programme carries risks that are in addition to regulatory risks.
He adds: ‘My practice has always invested in relevant CPD of all types, whether gaining panel membership, attending flagship conferences or reading the Gazette, to keep up to date. For the SRA to encourage us “how to reflect” and “when” in pastel colours on its website detracts from more important messages about, for example, carrying out file reviews to see what gaps in knowledge and training there might be within a firm.’
‘The main point,’ of continuing competence, Solon concludes, ‘is that the shackles are now off, and the responsibility is our own.’
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