After just three years the ‘continuing competence’ regime is already being reviewed. Was the SRA right to deregulate professional development?
The low down
Controversy surrounded the SRA’s 2016 decision to replace the mandatory 16 hours of continuing professional development with a simpl e declaration that solicitors had done enough to develop and retain their competence to advise. Could such a laissez-faire system really boost public confidence in solicitors? The profession is perhaps fortunate that this regime gives solicitors the flexibility that the Covid-19 crisis might otherwise have imposed upon them. But some struggle with the ‘reflection’ required by the new system and how to record their development efforts. A gap has opened up too. Well-funded commercial law firms have deployed the new flexibility to widen the nature and texture of training, but principals of struggling practices can feel tempted to treat training and development as discretionary spend.
It was only in November 2016 that the Solicitors Regulation Authority replaced the previous hours-based approach for topping up skills and knowledge with a much more flexible regime.
These reforms are coming under the microscope as part of a review led by the Legal Services Board into professional competence across the legal sector.
Dubbed ‘continuing competence’, the regime requires solicitors to ‘reflect on the quality of their practice and identify any learning and development needs’. It is a significant departure from the previous approach, where solicitors collected continuing professional development (CPD) points to meet a yearly quota of at least 16 hours of approved training. The onus has shifted on to individual solicitors to assess their needs and plan their training.
The only mandatory element is the annual declaration when solicitors renew practising certificates, stating: ‘I have reflected on my practice and addressed any identified learning and development needs.’ But how and when they do that is not prescribed.
The 2016 changes, part of the SRA’s Legal Education and Training Review (LETR), were introduced on the back of a consultation paper the SRA published in 2014 called Training for Tomorrow: A new approach to continuing competence. The regulator criticised the old approach to CPD as ‘largely a “tick-box exercise”, requiring individuals to certify that they have undertaken the mandatory number of hours of CPD with no real focus on the quality or appropriateness of the professional development that has been undertaken’.
This was at odds with the regulator’s new outcomes-focused and risk-based approach to regulation, as it put ‘a regulatory burden on individuals and the SRA with no readily identifiable regulatory benefit’. A ‘one-size-fits-all’ approach was ‘over prescriptive and inflexible’.
Scrapping CPD proved controversial, attracting criticism from the Legal Services Consumer Panel and the Law Society. In its response to the 2014 consultation, the Junior Lawyers Division (JLD) said it was ‘concerned about the impact of abolishing the minimum number of CPD hours on both the membership and the profession’. The JLD added that ‘if the minimum standard of CPD is not compulsory, many junior lawyers will find it difficult to obtain funding and/or time from their firms to achieve the necessary standard of legal services’.
Fast forward to 2019, when the SRA published an initial assessment of how law firms and solicitors responded to the ‘hours-free’ continuing competence regime. Its findings were based on a thematic review of 20 randomly selected law firms, and an online survey to which 463 solicitors and firms responded (both were conducted in December 2018). The SRA also used its own data, including the annual declarations.
The SRA found that 52% of solicitors were ‘doing about the same amount’ of professional development; 40% were doing more; and the rest were doing less.
Most firms and solicitors said that they had implemented the scheme ‘without significant problems’. Solicitors also told the regulator the new approach had helped them ‘to better identify’ their learning and development needs, and that professional development ‘appeared to be more relevant and targeted’. They also reported using a variety of L&D methods.
Most firms also noted a ‘reduction in the cost of learning and development activity by focusing activity on specific roles and teams, and working with other firms to develop and deliver training’. Nearly 40% of respondents felt that the changes had improved the competence of solicitors.
But the SRA also found a ‘variable’ quality of record keeping; and some solicitors reported that it was ‘difficult to make time to reflect, identify and address learning and development needs as part of day-to-day work’. The regulator concluded the ‘regime is still too new to allow any concrete conclusions to be drawn’.
These issues are being looked at anew by the LSB. In January the umbrella regulator launched a call for evidence on ‘ongoing competence’ to look at how frontline regulators should maintain lawyer standards (see box, p20).
The Gazette spoke to law firms and training providers to find out how they are finding the more laissez-faire approach. The feedback has generally been positive.
BPP Professional Development is among a number of CPD providers. Head of law programmes Kate Handley says: ‘Continuing competence, along with the changing legal market and technological advancement, has made lawyers and firms reassess what they want from training.’ That, she says, ‘was the case even before the concerns around Covid-19’ and face-to-face contact, but the place of technology in training is now ‘heightened’.
One trend is increased demand for training on commercial awareness, finance and business skills, legal project management, legal tech and emotional wellbeing.
How well firms have adapted to the SRA’s less prescriptive approach depends on the size and type of firm, Handley observes. ‘Most larger firms with specialist learning and development teams have handled the transition smoothly,’ she notes.
In contrast, smaller firms ‘rely much more on individual solicitors to ensure that they have continually developed and updated. In some difficult markets (legal aid being one), when there is no mandatory CPD quota it is hard to take time out of the office and to pay for the privilege and then also reflect upon it.’
Responding to these needs, BPP has introduced a more reflective style of training. An example is the ‘legal tech, innovation and design’ online course. This requires the learner to reflect as they progress through each module, and they can receive guidance from a tutor on their inputs and reflections. ‘Reflection is not something that comes naturally to many of us, but we are seeing it become more of an everyday part of training with those emerging from their [LPC] and training contracts,’ Handley says.
Lockdown aside, firms remain ‘keen’ on face-to-face training, particularly skills such as mediation, negotiation, drafting and advocacy. But there has also been an uptake of BPP’s ‘online classroom live’ courses.
TIME FOR ‘PERIODIC REVALIDATION’?
Three years after the system was overhauled, on 21 January this year the Legal Services Board launched a review of how legal professionals, including solicitors, remain competent throughout their careers. In the consultation document, the LSB observed that, unlike for professionals in healthcare and education, there is ‘no regular formal assessment’ of lawyer competence during their careers beyond CPD requirements, which involve ‘unassessed training’.
The oversight regulator is considering introducing a system of ‘periodic revalidation’ for lawyers, similar to doctors who are required to show fitness to practise every five years. ‘Independent reports suggest revalidation has been beneficial for medical professions and consumers’ trust and confidence,’ the LSB said. This includes the 2019 Ipsos Mori report (for the Nursing and Midwifery Council) which ‘found revalidation was key to generating change, including cultural change’, the LSB said.
Alan East, chair of the Law Society’s education and training committee, says: ‘Continuing competence is a key component of being a member of any profession. Solicitors represent a gold standard in the provision of legal services and the Law Society supports the profession to continuously improve their knowledge, skills and the service they provide to their clients.
‘Genuine improvements to help all legal professions are welcome. The Law Society welcomes this call for evidence and the opportunity to contribute and shape the LSB’s thinking at this initial stage and would encourage an evidence-based, balanced view that avoids undue burdens on individuals or firms. The Law Society will be responding after careful consideration of our members’ views and will be working with the LSB on this as the work evolves.’
Compliance training specialist VinciWorks has created an online ‘continuing competence module’. This educates solicitors on the new requirements, guides them through creating a reflective learning plan, and provides oversight for firms, explains chief marketing officer Yehuda Solomont.
VinciWorks has looked at data from the module to see how many activities and needs solicitors record on the system (the SRA recommends that solicitors record learning needs or gaps identified and activities to meet those needs). In the study, solicitors identified an average of 5.4 learning needs and completed 9.8 activities associated with those needs over a 12-month period, Solomont says. Learning gap examples include improving Excel skills, understanding the SRA Code of Conduct, supervising the work of others, keeping accurate records and understanding money laundering requirements.
The data shows that, on average, solicitors are doing more than 16 hours of learning on a yearly basis, since most activities take between one and two hours.
‘The 16-hour requirement did not achieve any “learning outcomes”,’ Solomont contends. ‘Under the old CPD regime we would see solicitors cramming hours of training in late October to hit the 16 hours.’
Asked to what extent ‘continuing competence’ has improved on the previous system, Alan East, chair of the Law Society’s education and training committee and assistant professor at Coventry University, says: ‘It is providing more opportunity to create diverse ways of learning and developing. Using more technology helps solicitors prioritise time. This has to be an improvement.’
The growing use of technology underpins the SRA’s looser and more fluid approach to regulation. East, who is also a committee member of the Warwickshire Law Society, says local law societies used to have a ‘thriving’ programme of CPD courses, but these have reduced ‘significantly’ under the new regime. He argues this is because solicitors have the flexibility ‘to do things differently’. Solicitors and law firms can develop ‘in their own time and use technology. Online resources are more popular. Solicitors can now learn from their desk or from home’, he points out.
Ditching the scramble
What about the law firms? Patrick McCann, global head of learning at Linklaters, says the continuing competence regime has ‘not radically changed’ how the firm’s solicitors maintain their competence.
This is because ‘a large amount of training’ has always been available at the magic circle firm. ‘Most of our lawyers have always been reflective and deliberate in only attending training that addressed current learning and development needs,’ McCann says.
But he adds: ‘We do notice two changes – a minority of our solicitors no longer have an annual strategy to scramble to meet their 16 hours by attending training that is less relevant… and it has given more weight to a thoughtful, holistic approach.’
Linklaters has up to 14 different training methods to help lawyers keep their skills and legal knowledge up to date. They include formal lectures (if the audience is more than 50 people); workshops with exercises, case studies and quizzes; interactive sessions involving ‘page-flips’ of key contracts that attendees need to know how to draft; roundtables on a single case study; ‘fireside chats’ where an employee interviews a subject matter expert; conducting research on the job, for example, as part of ongoing matters; and taking part in panel sessions with three or more speakers.
Linklaters’ ‘preferred approach’ is to use its lawyers, L&D and other business teams’ members to provide content. ‘We have a sufficiently insightful and large internal faculty to make this possible,’ McCann says. External providers are used ‘occasionally’ where they have particular subject-matter expertise; and that includes accountants, specialists in health and wellbeing training, and media specialists. ‘We also ask our current and former clients to share their industry and managerial insight,’ McCann says.
Caroline White-Robinson, head of knowledge management and L&D at Shoosmiths, expresses a largely positive view of the new regime. ‘Recording and attending training works well at the firm, with a low dropout rate,’ she says.
However, White-Robinson notes, ‘anecdotally the feedback has been that lawyers are not sure what they are to write when it comes to reflection. There is anxiety in there being no right or wrong answer’.
To help along the way, each employee has ‘a personal development plan’ that is discussed in the one-to-ones with managers. This is supported by a ‘comprehensive supervision policy’, White-Robinson explains. ‘Their learning record is stored digitally and can be pulled by the individual at any time so that they have a clear picture of what they have to complete and when.’
Continuing competence along with the changing legal market and technological advancement has made firms reassess what they want from training
Kate Handley, BPP Professional Development
The firm has developed ‘dedicated programmes’ tailored to either the job role or level of seniority. It is using a variety of training methods, delivered both in-house and by third-party providers. These include webinars and WeBex remote training; ‘action sets’; learning management systems; mentoring and work shadowing; coaching; and podcasts.
Lucielle Cartwright, head of organisational development at TLT Solicitors, favours continuing competence because learning and development occur throughout the year. The firm uses an online platform (Supervision) developed in-house, that ‘hosts’ monthly supervision and the CPD document. ‘Within Supervision employees share how they are progressing with their objectives, and what development needs they have recognised following one-to-one conversations with their line manager,’ Cartwright says. ‘Having the CPD document to update and reflect on as part of the supervision makes it easy for our people to keep track.’
The ‘CPD document’ form has been taken from the SRA website, and the system links to the statement of solicitor competency.
These and other templates are part of the SRA’s ‘toolkit’, which provides ‘much useful information’. The downloadable forms ‘are a good way of judging how the process is designed to work’, the Law Society says.
The toolkit also includes guidance on using the ‘competence statement’, which forms an ‘integral part’ of solicitors’ duty to provide a ‘proper standard of service’ to clients. It is made up of three parts: a statement of solicitor competence; the threshold standard; and a statement of legal knowledge.
The statement can be used in different ways, according to the SRA: as a ‘standalone’ tool; integrated into existing performance management systems (to support appraisals or review processes); or integrated into ‘competence frameworks’ designed to ensure employees perform effectively.
Continuing competence does not appear to have delivered on all that it promised to all firms. The new approach was supposed to help solicitors and their firms better identify learning and development needs, make it easier to maintain skills and improve competence, and, through greater flexibility, deliver cost savings.
White-Robinson observes: ‘Any benefit gained from the new regime has been offset by the other pressures which legal advisers and employees face,’ pointing to ‘pressure from clients and competing organisational demands such as the development of technology which will always compete with formal learning’. Hence why the firm’s solicitors can now access training in ‘bite-sized resources at a time most suitable to them’.
But this has added to the cost, White-Robinson concludes: ‘Greater flexibility means that training interventions need to be offered in a greater number of ways. Generally this involves people or technology, each of which requires investment.’
- The Law Society offers a comprehensive selection of training and development resources, which can be found at tinyurl.com/sasxr2v.
Marialuisa Taddia is a freelance journalist