Will plans for a new CPD regime lead to a dilution of professional development for solicitors?
The Solicitors Regulation Authority says its plans to reform continuing competence will bring CPD ‘into the 21st century’. But is there a risk its laissez-faire approach could be open to abuse?
After nearly three decades, the CPD regime is clearly due an overhaul. Despite strong support for retaining a compulsory minimum hours requirement, the SRA is now preparing the ground for a new regime which relies on self-certification.
There is still much work to be done. By focusing on existing provisions in the Handbook, which require a proper standard of legal practice and of training and supervision, the SRA is putting the onus squarely on individuals and entities to make sure they do the appropriate training to ensure they provide a competent legal service.
John Wotton, chair of the Law Society’s education and training committee, says the committee shares many of the SRA’s objectives in terms of best practice. ‘It is a regime that will suit well-resourced firms, while the overwhelming majority of practitioners will keep up their CPD as they always have,’ he says.
‘But it is vitally important the system also works for the financially constrained, including those advising vulnerable clients. In difficult times, the temptation will be to take short cuts and, without a minimum hours’ requirement or some tough sanctions, there is a real danger that investment in training will drop and standards atrophy.’
While the Law Society suggested a minimum of 24 hours in its response to the Legal Education and Training Review, Wotton says: ‘We didn’t nail our colours to any particular number of hours in our response to the SRA consultation because it is about quality and relevance, not quantity. But the new system needs to be underpinned by some compulsory element.’
So how do practitioners and providers view the future regime – and will there be a ‘blood bath’ among the training industry, as some are predicting?
The SRA consulted on three options. It chose option 1, which focuses on self-certification, despite the balance of the 64 responses to its consultation paper – including those from the Law Society, junior lawyers, sole practitioners and in-house counsel – favouring option 3, which retained a minimum hours’ requirement. The Legal Services Consumer Panel favoured the least popular option 2, which would have required practitioners to record training without any compulsory number of hours.
Individuals know best what learning styles work for them, which might be listening to bite-size chunks on a podcast on a bus to work
Julie Brannan, Solicitors Regulation Authority
So why ignore the views of some of the main representative bodies? Julie Brannan, the SRA’s director of education and training, acknowledges that their choice will mean a change in approach and culture. ‘But we weren’t asking for a vote,’ she says, ‘and many of those supporting option 3 saw drawbacks with its focus on time spent rather than on what was learnt.
‘What we want to do is put learning at the heart of continuing competence in a way which maximises flexibility and recognises that firms know best what their staff training needs are, while individuals know best what learning styles work for them – which might be listening to bite-size chunks on a podcast on the bus to work.’
This is not a soft option, she stresses, maintaining it will be tougher than the current system because people will have to assess their competence and reflect on the training they take. They will also have to sign an annual declaration confirming this when they renew their practising certificate.
The SRA’s move reflects a trend to reform CPD – the Society for Trust and Estate Practitioners dropped its 35-hours requirement in April, while CILEx is replacing its 16-hours minimum with a requirement to record nine ‘outcomes’. However, the Costs Lawyer Standards Board is sticking with its 12-hours minimum.
The CPD regime certainly needs reviewing, says Hannah Mackinlay, a non-practising commercial property solicitor who set up website www.propertylaw.guru and has been giving CPD lectures for the last decade. But the SRA should have put out its guidance on how the new system would work before it made its decision, so people could see there was ‘method in its madness’, she says.
‘I feel like a turkey voting for Christmas when I say I think the SRA is going in the right direction, as my income may be severely affected if there is a move away from the traditional course-based systems.’
Most research shows that individual research, on-the-job learning, and learning from experience are the best forms of learning, she says, but this does not count under the current system.
The difficulty with reform, she says, is that law firms are generally not prepared to embrace a more effective system. ‘Only the larger firms have the luxury of L&D departments, and even those that do only think in terms of webinars and courses as a way of providing training. Also, to suggest that most lawyers should engage in “reflective learning” is to assume too much. In the main, most won’t have a clue what that means – and to be honest, neither did I until I researched it.’
Sole practitioner Hilary Underwood drafted the Sole Practitioners Group’s (SPG) response to the consultation. ‘Solicitors generally don’t like non-prescriptive approaches, which can be seen from the confusion and uncertainty surrounding the transition to outcomes-focused regulation,’ she says.
‘The buck stops with sole practitioners when it comes to the quality and competence of the service, but will others really reflect on the quality of practice within their organisation, identify areas for development and planning development activity, or will they be too busy making money?
‘This is a huge sea change and only time will tell whether there is a watering down in professional development.’
Pamela Henderson, senior lecturer in law at Nottingham Law School, led the review of CPD for the SRA which was fed into the Legal Education and Training Review. She says the new regime will remove the current barriers of costs, time, relevance and location because practitioners will only have to undertake as much CPD as is necessary for them each year and they will be able to do it in whatever way works for them. But it will need a ‘robust’ cycle of planning, implementation, evaluation and review for it to work as desired.
What is not yet clear is how the SRA will police the new system. Brannan says the SRA will not be prescribing how people record their training as per option 2.
‘It was seen as too inflexible and just replaced a box-ticking exercise with a form-filling exercise,’ she says. ‘It is the worst of all worlds in the sense you still have to prove competence without the clear input rule of 16 hours.’
However, she says that, as a matter of common sense, practitioners will want to keep a record of their learning, while firms will need to have systems in place to show compliance. ‘If someone is involved in disciplinary proceedings, the question will be whether the standard of their work was competent, and it will be an aggravating feature if they are unable to demonstrate that they have taken training seriously and complied with Handbook requirements.’
However, Sophia Dirir, chair of the Junior Lawyers Division, says that, without rigorous enforcement, the SRA will only know that a firm or individual has not carried out adequate training after something has gone wrong.
‘CPD training should also have to be signed off so the SRA knows who has done what and how relevant it is,’ she says. ‘One way would be to declare four hours every quarter, which would spread the CPD across the year.’
For Underwood, signing the annual declaration will be an effective stick for individuals, but she also warns the threat of audit and supervision by the SRA is less direct and may be ineffective.
However, Brannan says enforcement has to be proportionate to the risk. ‘If we identify problems in a firm or practice area we will look at training and see if we need to issue guidance,’ she says, though she accepts there may be cases involving vulnerable consumers ‘where we have to take a more robust line’.
She says the SRA considered making compliance a requirement on COLPs but recognised different firms have their training set up differently, so it will be up to firms to decide who is responsible for ensuring compliance.
‘I am not sure how effectively the old system was policed,’ says Geoff Owen, learning and development consultant with the Parabis Group. ‘There will need to be a system for checking compliance but, with self-certification, the key will be making the training as attractive and practical as possible so people want to do it.’
Adrian Dion, managing director of the SOLICITORS group, which has over 1,250 member firms (largely private practice law firms) and trains over 20,000 lawyers annually, believes most solicitors will continue to record their CPD.
‘In all the various professional markets in which we operate, professionals are required to log their CPD,’ he notes. ‘Our customers in those markets believe this is good discipline and also helps reflect on how they have structured their training during the professional year.’
One consequence of removing the compulsory element is that the SRA will no longer accredit providers, though it admits it was of limited value, as it was difficult to assure the quality of training.
An opportunity for shortcuts?
For junior lawyers and in-house counsel, the big fear about the SRA’s decision to drop the minimum hours requirement is how they will argue the case for paid-for external legal training when budgets are being squeezed.
Sophia Dirir, chair of the Junior Lawyers Division, says the SRA is being ‘idealistic’ if it thinks it can take a step back and essentially leave CPD to firms and individuals.
‘Many firms are struggling financially and removing the prescribed CPD hours will just open up opportunities for some to take shortcuts’, she fears.
‘Our members believe that, as junior lawyers, we should be required to do more CPD than our more experienced counterparts. But newly qualified and junior lawyers are also often vulnerable to pressures within their firms, including bullying and concerns about job security, so they are unlikely to speak up about inadequate training, even when it is officially their responsibility.’
CPD time is a ‘very crude measure’, says Natalie Jobling, chair of the C&I Group’s training committee. ‘But my personal view is that removing it will make it more difficult for some in-house lawyers to justify external training.’
The group says it is still unclear how the proposed changes will operate within organisations employing solicitors in-house. In the meantime, it is surveying its membership to build a picture of how members see the changes affecting their organisation’s attitude towards training and to gain insight into the kind of training they want the group to provide.
There will need to be a culture shift in the profession, Julie Brannan, the SRA’s director of education and training, acknowledges.
But she argues: ‘In other areas of work people negotiate with their employers about their training needs and it is a better conversation to have, that “I need to do this training because the law has changed and I need to understand how it affects my practice” rather than “I need to do this course so I can tick a box”.’
She says anyone who feels they aren’t getting the training they need can contact the SRA. ‘Firms have an obligation to ensure all staff – not just those who are qualified – are properly trained and we will hold them to that,’ she warns. ‘If a firm gets into hot water and hasn’t trained its paralegal staff, for instance, that will be an aggravating feature.’
Currently it authorises 1,300 external CPD providers and around 1,500 firms and lawyers so they can provide accredited training in-house. This will be phased out from November, which will mean a loss of income to the SRA of about £500,000, but will mean savings for in-house providers who will no longer have to pay the annual authorisation fee.
The SPG is an external CPD provider. Underwood says it will mean a cost saving for the group ‘but we don’t wish to make savings at the risk of incompetent training providers having access to the profession’.
The problem with accredited courses, says Henderson, was they ‘attracted a premium price without necessarily offering premium quality – with some honourable exceptions. Now that compulsory element has gone, people may be able to reduce expenditure and time in certain areas and focus on those activities that are genuinely useful to them’.
One area the SRA will have to address is the impact removing accreditation will have on reciprocal arrangements with foreign bars, a concern for firms with international offices.
Practitioners are also waiting to see what impact the changes will have on the training market. Progressive Legal Training, which had provided CPD training since 1995, closed a week after the SRA announced its plans.
‘There is a blood bath going on in solicitors CPD,’ says Mackinlay, ‘with decent quality courses replaced by non-interactive webinars, some of which are of appallingly poor quality.
‘What you will be left with is huge hall-based non-interactive lectures, online webinars and, for the lucky few who work for enlightened firms, in-house tailored training.’
The challenge for lawyers, she says, is to realise that they are 10-20 years behind in ‘knowledge management’ and to adapt to this.
‘We need to move to ‘resources’ rather than ‘courses’ and ‘just-in-time’ training, rather than the current ‘just-in-case’ course training. That means having easily accessible materials for reference, such as Practical Law and LexisNexis, updated by third parties, alongside incredibly tailored training, and bite-sized chunks of advice from external advisers, such as counsel or other sources, possibly over Skype.’
The CPD-accredited training offered by the Commerce & Industry Group has largely consisted of face-to-face events put together by its training team, together with leading law firms and other providers.
Natalie Jobling, chair of its training committee, says it is canvassing members’ views on what it should add to its training programme, given the new regime could mean external, full-day training becoming less relevant or more difficult to justify to employers (see box, above).
Peter Riddleston, head of learning, quality and development for law firm network LawNet, says member firms receive training as part of their subscription. ‘We run about 40/50 courses a year covering both technical legal issues as well as compliance, business development and practice management.’
He adds: ‘The new regime is a sensible change as it will allow us more flexibility in what we do, so I am looking at e-learning products, mentoring programmes and focus groups, so members can learn from each other in a structured way.
His instinct ‘is to move quickly to the new system as soon as we can opt in, but it will be up to members. However, they are progressive, so I don’t think they will want to hang on to the old system if they don’t need to’.
Timeline for change
With all the debate around the CPD reforms, it is important solicitors remember the old regime is still in place and they must complete their minimum 16 CPD hours by the end of October.
Consultation on the proposed Competence Statement which will include reference to the newly worded annual declaration.
Policy statement in advance of the 2015 practising certificate year explaining what is going to happen next.
Legal Services Board expected to approve changes.
Publication of Competence Statement; guidance on how to identify training needs; tools to help with the process; examples of good practice; suggestions on how to record and reflect on training.
Firms can start opting into the new competency system.
New regime comes into force on 1 November.
There will certainly be casualties among providers, says Trevor Hellawell, a training consultant with MBL Seminars, but that will not be due to the CPD changes per se but to firms wanting to get the best value from their training.
‘I think it is an exciting opportunity to look at the whole CPD spectrum: how you offer it, what firms will need when the responsibility is cast on to them,’ says Hellawell, formerly head of law programmes at BPP Professional Development. ‘Those who were taking the mickey before will go on doing that and those that take CPD seriously will still do so. There will be a lot for smaller and middle-sized firms to wrap their heads around so there are great opportunities for providers to do that thinking for them.’
Stephen Honey, the Law Society’s publishing and e-learning manager, says the Society’s CPD Centre, which now has 36,000 registered users, is well placed to support people in assessing their development needs, setting goals and reflecting on how useful the training was.
‘With no requirement to use an authorised provider I image a lot of firms will do more training in-house, which is a trend I have seen with larger City firms,’ Honey says. ‘But I still think there will be a market for really good training with recognised speakers because it saves time and effort for firms.’
Central Law Training, part of the Wilmington Group, currently offers a range of three- to six-hour courses across nine major practice areas, as well as specialist conferences and more than 250 webinars per year.
Mark Solon, managing director of the group’s legal division, says it is reviewing its training programme in light of the SRA reforms and he anticipates it will deliver more in-house training, more online learning and shorter, more focused training sessions.
He says it is a ‘bold’ move by the SRA and should motivate the training industry to be more modern and creative.
Brannan recognises that the changes will be harder for smaller firms without an HR or training infrastructure. The toolkit of materials to be published next year will help them embed the new approach in their own internal systems, she says.
This is about flexibility of learning styles. ‘The days of dusty hotel rooms are over,’ she says. ‘This is about using new technology and means we are beginning to move into the 21st century.’
Grania Langdon-Down is a freelance journalist