Clocking in

NOW that all solicitors are obliged to get their cpd points, rowland byass looks at how they are coping, what technology has to offer and how the process is handled in other countries

It is nearly two years since continuing professional development (CPD) was made mandatory for all solicitors, including those who qualified before 1982.

However much some of the senior members of the profession might have grumbled about this, there is little disagreement on the rationale for CPD, defined by the Law Society's CPD manager Maxine Warr as 'the maintenance and enhancement of skills, knowledge and personal qualities for the benefit of the practitioner, their employer, the profession, and society as a whole'.

For this vision to have meaning, however, fee-earning time sacrificed for CPD activities has to be time well-spent.

David Folkard, sole principal at Northumberland firm David A Folkard & Co, is equivocal.

'It's a good idea in principle, but I regard some of the courses run by private companies as rip-offs.

'I end up wondering why I bothered.

My big problems are the length of time I spend out of the office, and the costs.'

He is one of the pre-1982 qualified solicitors now covered by the rules, although like many he had already been attending CPD courses before November 1998.

'Of course it's necessary for us to stay abreast of changes, but the choice of what kind of CPD I do can be unduly restrictive, because my legal aid franchise is linked to doing certain areas.'

His concern about the variable quality of some external course providers is shared by David Emmerson, chairman of the Legal Aid Practitioners Group (LAPG) and a partner at newly merged Essex firm Edwards Duthie.

'Recently it has been difficult to get into the office without tripping over a mountain of invitations from private providers to courses on the Human Rights Act.

Often the quality of these courses is, shall we say, untested.'

Instead he recommends not-for-profit courses done by professional interest groups such the LAPG itself, or the Solicitors Family Law Association.

At smaller firms without the resources for dedicated human resources personnel, solicitors themselves must organise and record CPD.

Sole Practitioner Group chairman Peter Williams agrees that CPD is 'essential to keep up on new developments'.

His group has negotiated preferential rates for members with course providers.

He says he generally rates the courses he has attended 'quite highly'.

But, he adds, 'there seems to be an overpriced and somewhat monopolistic situation between the larger course providers'.

In the commercial providers' corner, Morgan Rigby, managing director of BLS Professional Development, one of the largest CPD providers, contends that the quality of his company's courses is 'excellent'.

He says: 'Our presenters are very well regarded in their fields and we have a good return rate for people who have done courses before.' He recognises that if a market where they are nearly 1,000 course providers, some are bound to be better than others, but he adds: 'We can't afford not to do quality courses.'

And as for the accusation that they are part of a monopoly? 'We are in the business of training lawyers.

Even before the CPD scheme was made compulsory across the profession, 30-40% people on our courses were doing them on a non-compulsory basis.'

At larger firms, in-house training and human resources departments devise and organise the CPD requirements.

Sally Sanderson, head of human resources at 54-partner City firm Theodore Goddard, says solicitors at her firm 'very rarely' have problems meeting their minimum CPD requirement.

'Most of our solicitors do much more than 16 hours a year - around 80% have met their requirement by the first half of the year.'

Theodore Goddard lawyers have a human resources department to keep track of their CPD records and most training is done in-house.

'Internal training is better in our experience.

A lot of externally provided training is not of a very good quality.'

Maxine Warr thinks there are good cases for both in-house and externally provided training.

'There's a lot to be said for in-house training - it can be tailored to the particular needs of a firm and their clients.

But outside courses can offer a more holistic approach.

You can exchange ideas and get input at discussions from speakers and other attendees from different firms.'

Responding to criticisms about the quality of some course providers, she points to the Law Society's 'rigorous' accreditation system.

'We scrutinise course materials and speakers closely before awarding accreditation.

We also have a programme of random monitoring; courses are attended and reported on.'

In recent years, an emphasis in other business sectors on management and 'people management' skills has spread into the law.

Nigel Wilkinson, marketing manager at CLT Training, the country's largest legal training company, says interest in management skills courses has 'noticeably increased', particularly in those dealing with profitability and personnel management skills.

'We are trying to encourage solicitors to embrace a service culture,' says Ms Warr.

'It needs to be more pervasive in the profession.' Sally Sanderson agrees: 'Lawyers are still lacking in people-management skills, compared with other fields.

They just don't receive the same amount of training in this area that other professionals do.'

The Law Society rules allow much flexibility in how solicitors fulfil their CPD requirements, whether through writing articles or dissertations, doing research, attended or distance learning courses, or through watching (legal) videos.

Of these, video-based CPD courses offer several advantages over attended CPD courses.

They work out cheaper than the costs incurred attending and travelling to courses.

And instead of sacrificing fee-earning time for attended courses during the working day, they can be 'attended' at home in front of a television, or during a lunch break.

On-line CPD courses offer similar benefits to video-based courses in terms of cost and flexibility, and have the additional feature of interactivity.

A Law Society-commissioned survey earlier this year found that solicitors are fast catching up with the information revolution: 83% of those surveyed have access to the Internet at work or at home.

The time seems right, then, for a new and according to some, revolutionary training medium.

With on-line CPD, different media - video, audio and text - and teaching techniques can be combined into a single application, making learning more efficient and integrated.

Solicitor Stephen Gilchrist of Lawcoach, the first on-line CPD provider to receive Law Society accreditation two years ago, says it offers 'unlimited potential'.

He points out that 'the original objective of the Internet was as a learning and research tool'.

According to Delia Venables, a leading legal IT consultant, on-line CPD is a 'definite growth market'.

She runs two on-line courses from her legal portal site, which also provides links to several other on-line CPD providers.

At present, she says, 'a lot of people are experimenting with CPD, but nothing large-scale is in place'.

There are potential pay-offs for both the smallest and largest firms.

Delivering training via the Internet eliminates the cost and inconvenience incurred by small firms' solicitors travelling to seminars and courses.

Similarly, a large firm with many branch offices, often on the other side of the world, can deliver standardised training to solicitors via the Internet for much less than it would cost them to fly them to their 'real world' training centre.

'E-learning could be very helpful in supplying training to our more remote offices,' says Eileen Gardner, training manager at City firm Lovells, which has offices across Europe, Asia and the US.

Her firm is currently 'thinking about' making greater use of on-line training, she says, although it has 'real limitations' too.

'Skills training is often best done face to face, and it's often difficult to find time at your desk to do training on a computer.

It's sometimes better just to say "I'm away doing a course today", than to try to fit it around other commitments.'

For smaller firms and sole practitioners, however, time spent away from the office is time wasted.

Nicholas Bohm, a Hertfordshire-based sole practitioner, finds traditional methods of CPD 'a profound nuisance'.

He maintains that solicitors are a poorly served 'captive market' for existing course providers.

'I would much prefer a system that meant that I could do CPD when it suits me, rather than when it suits course providers.'

It is to such solicitors that on-line CPD, with its in-built flexibility, should appeal most.

The format of courses varies widely, from simple text-based courses, to on-line tests and audio lectures delivered via the Internet.

Delia Venables' Guide to the Internet for lawyers courses are text-based with embedded links to relevant sites, guiding the user through useful law-related sites such as the those of Parliament and devolved assemblies, where they show how to search for information and print out copies of pending legislation.

Lawcoach offers similar text-based courses presented by solicitors and barristers, and is running a pilot on-line Professional Skills Course for trainee solicitors at Bristol-based Osborne Clarke and City firm Eversheds this autumn.

Law firms are moving into the on-line training market as providers for other lawyers too.

City firm Theodore Goddard recently announced it is to launch an on-line training package aimed at in-house lawyers this autumn.

It supplements the firm's existing media and communications bulletin, and consists of multiple choice questions based on information in the bulletin, and an update on new legal and business developments in the media sector.

CPD hours are allocated in proportion to the number of correct answers given.

Jonathan Berger, the partner at the firm overseeing the project, thinks on-line training is 'definitely the direction things are going.

As well as meeting lawyers' training needs TG On-line showcases our know-how, which is good for our marketing'.

The advent of broadband Internet access, which will allow the handling of greater quantities of data, means that on-line CPD is set to become increasingly sophisticated.

Already providers such as 2ends offer audio lectures, which can be downloaded and listened to at leisure, supported by printable notes and links to relevant sites.

After hearing a lecture, the solicitor can participate in an on-line discussion forum with other users or e-mail the lecturer with queries.

'You have a top QC at your beck and call,' enthuses Anthony Davy, co-developer of the site.

He is uncertain as to why on-line CPD courses cannot make up the mandatory 25% attended courses of the CPD requirement.

'We have an excellent list of contributors to our courses, and because anyone can look at our courses we can't hide behind the quality issue.'

Currently, Internet-based CPD qualifies for hours in the 75% 'other activities' component of the Law Society CPD rules.

This means that a solicitor doing 12 of the 16 annual minimum CPD hours by on-line learning would still have to make up the remaining four hours by attended courses - including assessed distance learning courses.

'The Law Society are still treating on-line CPD as a trial,' says Alan Tomlinson of Lawyers Online, a legal Internet service provider (ISP) which is currently developing its own CPD services.

In response, the Law Society's CPD manager Maxine Warr points to the CPD rules.

'The only distance learning courses that currently qualify for the 25% element of the CPD requirement are those involving assessment by dissertation and written examination.

If courses fall within the criteria, they can qualify for the attended 25%.' Adding that the Law Society is in the process of drawing up new guidelines to cover this area, she maintains: 'We want to encourage on-line CPD.'

Lawyers Online's own solicitor, Chris Tagg of Hereford firm Houghton & Co, has already put in four hours of on-line CPD this year.

For him it is the 'ideal' medium.

'I can stop and start when and where I like - at the office or at home.

There's a choice of different media - video, audio, text.

Ideally, you can combine them all.'

He has been involved in the development of Lawyers Online's CPD services, and thinks that 'inertia' on the part of course providers has prevented full use of the Internet's potential as a professional development tool.

'Of course, there's lots of money in traditionally provided courses and on-line CPD courses are initially quite expensive to set up.

Once they are up and running properly though, running costs are negligible, and you can offer a very competitive rate to solicitors.'

As a solicitor, he says he finds on-line CPD especially useful for routine matters and updating case law.

'For updating on case law, I can get hold of an analysis with cross-references quicker and more conveniently than by any other means.

The Internet was designed precisely for this kind of use.'

In the long term, pricing is likely to be a deciding factor in the success of on-line CPD.

Text based courses work out the cheapest.

An eight-hour CPD course on Delia Venables' site costs 58.75 for a single user; an intranet version for multiple users is 117.50.

Some on-line CPD, such as that provided by BLS Professional Development, runs as an add-on to a 'real world' course.

Its one-hour CPD civil litigation update test, in which results are e-mailed back to the user the same day, costs 58.75.

Other providers such as 2ends price their courses on a per-seminar basis (30-40), allowing the user to select areas relevant to his or her work.

By international standards, the Law Society of England and Wales' CPD regime is fairly exacting.

While all practising solicitors must put in 16 CPD hours a year, mandatory CPD is by no means uniform across other common law countries.

In Ireland, New Zealand, South Africa, Canada, all but one of Australia's federal states and 11 US states, there are no mandatory continuing legal education (CLE) requirements, as it is known in other countries, covering all lawyers.

Proposals for mandatory schemes are, however, under scrutiny in South Africa and Ireland.

Solicitor Michael Peart chairs the Law Society of Ireland's working party on CLE.

He is convinced of the timeliness of mandatory CLE in Ireland: 'The profession can't bear up to scrutiny if there is no requirement for solicitors to keep abreast of new developments.'Since 1990, the number of solicitors practising in Ireland has increased by 75%, creating a challenge for the law society to maintain standards.

Mr Peart's working party has recommended the introduction of mandatory CLE on a phased basis, beginning with newly qualified solicitors in their first five years of practice.

He anticipates that there will be 'psychological hurdles' to be crossed before its implementation across the profession.

'But other professions have had mandatory continuing education for some time, and there's no reason why solicitors should be any different.'

Annette Black, director of education at the New Zealand Law Society, is less convinced of the merits of mandatory CLE.

'There is a belief that mandatory CLE increases competency - but no compelling evidence that it does.' Currently mandatory CLE is required only for duty solicitors, trust account partners and counsel for children.

A Bill restructuring the New Zealand legal profession is due to go through the country's parliament later this year, but according to Ms Black it is 'uncertain what role mandatory CLE will play'.She points to figures showing that at least 50% of the Society's membership have attended at least one of its CLE courses in the last year, citing this as the reason why CLE has not been made mandatory.

Renate de Klerk is responsible for CLE at the Law Society of South Africa, which represents the country's 13,000 practising attorneys and also provides the majority of CLE courses.

In South Africa, issues of cost and access are at the fore.

While solicitors in this country might resent spending a day out of the office on a CPD course and thus losing fees, South Africa's sparse population density and large area mean that rural attorneys attending courses and seminars in the cities might spend two to three weeks out of the office.

'Face-to-face courses are only really practical around the big population centres.

For some attorneys, distance learning is the only option,' she says.At present, the only mandatory requirement for attorneys in South Africa is a law practice management course; a pragmatic obligation since, she observes, '90% of indemnity and fidelity fund complaints against attorneys are because of bad management'.

As in New Zealand, impending change in the form of a new Legal Practitioners Act looks set to increase the practice areas covered by a mandatory requirement, probably to be based on England and Wales' CPD model.

The inclusion of a human rights workshop in the mandatory requirement is currently under consideration.

But because a high percentage of attorneys in South Africa are sole practitioners, she is cautious about the merits of imposing 'a burden that sole practitioners can't afford, both in terms of time spent out of the office and the expense of courses'.

A series of interactive satellite seminars, broadcast to 20 regional centres across the country was launched this year as a means to address these logistical problems.

Questions can be telephoned through to the speaker and heard by all attending.

As a result, CLE has reached practitioners who had never previously had a feasible opportunity to attend such seminars.As in many other things, the US leads the field in the use of technology to overcome logistical and geographical barriers.

The American Bar Association's (ABA) Centre for Continuing Legal Education, the principal national provider, offers audio lectures, multimedia webcasting combining audio, video and text, and interactive training via the Internet.

Interactive video-conferencing, tele-conferencing and satellite seminars are also regularly available.

And as if that were not enough, insomniac lawyers can access a 24-hour audio library of CLE programmes by telephone.

Peter Glowacki, the ABA's educational development specialist, feels that distance learning formats are 'an enhancement, rather than a replacement for live CLE.

Real world programmes are also important opportunities for networking, which you don't really get by distance learning'.

Mandatory CLE is administered and accredited state by state - on average a US lawyer must put in at least 13 hours a year.

According to Mr Glowacki, uptake is high even in non-mandatory CLE states.

A key factor is marketability: 'Many will go to non-compulsory courses because it will set them apart from the competition.'

Although US CLE rules do not stipulate an assessed element (as they do here), the majority of states have a mandatory ethics component to their requirement, usually of at least one or two hours a year.

In California and Washington State respectively, lawyers must also complete compulsory modules in diversity and the elimination of bias in the profession.

The only other jurisdiction with a similar CLE requirement of this kind is New South Wales in Australia.

Last year, the state's attorney-general set down a mandatory requirement in equal opportunities, unlawful discrimination and sexual harassment.

Marion Smith, mandatory CLE officer at the Law Society of New South Wales, describes the move as an 'unusual exercise.

It came without any warning'.

Others in the field of CLE are equivocal about such requirements.

'The objectives of such a policy are laudatory.

But a few hours of CLE won't change the attitudes of those who don't want to be converted,' thinks Annette Black.

Over here, existing compulsory management training for solicitors in the first three years after qualifying includes a module in equal opportunities.

But more could be on the way.

The Law Society's head of professional development, Sue Ecclestone, says the issue of equal opportunities across the whole of legal training and education will be addressed by the training committee before the end of the year.

'We encourage solicitors to identify their own needs - a "drip-feed" rather than a "quick-hit" approach.

Encouraging is often more effective than imposing.'