The draft practice rules stress the need for effective supervision of staff. So how can law firms ensure that they measure up? A Lexcel/Investors in People accreditation could be the answer, says Paul Widdup

Enhanced client care and effective risk management have been heavily promoted in recent years, not only for regulatory purposes but also as performance management tools.


Emphasis has also been placed upon adequate supervision as a regulatory tool, but there has been little comment on how good supervision can enhance performance. Knowledge and understanding in this area are becoming essential if its value is to be fully realised.


Interest in effective supervision has also increased because of the emphasis on supervision in the Law Society's draft revised practice rules to be introduced shortly. Draft practice rule 5 requires 'appropriate supervision over all staff' and 'adequate supervision and direction of client's matters'.


The draft rule and its accompanying notes deal with how appropriateness and adequacy of supervision are to be determined. The rule also requires that those 'qualified to supervise' must have completed a course of training specified for this purpose and must have been qualified to practise as a lawyer 'for at least 36 months within the last ten years'.


However, beyond these provisions, the capabilities required of those qualified to supervise are not analysed in detail. The rule leaves it to the individual firm to determine, taking into account the need to provide a competent service.


The issue has been further awakened by the transfer of regulatory issues to the Regulation Board, which set out its key objectives as: 'To set standards for entry to the profession, professional behaviours, and continuing professional development so as to maintain and enhance the competence, performance, and ethical conduct of solicitors and uphold the rule of law... [and] to set standards for organisations offering legal services.'


While the revised rule 5 falls within these objectives, they also indicate a shift to a broader approach. They imply that future regulation will include competency and performance standards as well as standards of conduct; compliance will be mandatory; the emphasis will be on development as well as compliance; and monitoring will be an integral part of the maintenance of these standards.


A foretaste of this approach is evidenced by the board's proposals to replace training contracts with work-based learning. At their heart are defined standards of competency and performance for trainees who are to be supervised and assessed by supervisors and assessors who must be qualified through training specified by the board. Firms that are authorised to accept trainees will be subject to strict validation standards and compliance monitoring.


The benefits of an objective, standards-based approach such as that prescribed by Lexcel and Investors in People (IIP) have already been recognised by many firms. It enables them to measure their performance against an external standard in a relatively flexible way, taking into account their individual values, culture and strategy.


As a result, firms move away from a compliance culture towards one in which compliance becomes part of a culture of effective performance and continuous improvement. In these circumstances, the appropriateness and adequacy of supervision and the capability of those qualified to supervise become matters that directly contribute towards the firm's success.


The notes to draft rule 5 state that, in evidencing compliance, 'firms will be expected to produce evidence of a systematic and effective approach to management', adding that this may include implementing standards such as IIP or Lexcel.


How far does Lexcel assure rule 5 compliance, and set the standard regarding those qualified to supervise? Currently, its standards for supervision are influenced by its approach to risk management and people management, and fall within sections 5 and 6 of the standard.


It takes a procedural approach, with the need for such matters as checks on incoming and outgoing communications, controls on allocation of work, inactivity checks, and regular file reviews. The emphasis is on supervision which is appropriate and adequate in risk management terms.


Supervisors are required to control, check and review, and their capabilities are determined accordingly. In addition, Lexcel requires that all personnel within the practice have the skills, knowledge and experience to fulfil their roles, and this includes the role of supervisors.


Lexcel and IIP have a number of common requirements but there are also differences. The IIP standard promotes a performance-based approach, particularly in its most recent version. Via a series of indicators, the emphasis is on positive management, involvement, and enhanced learning and development of people. The standard is geared to continuous performance improvement through a cyclical process of 'plan-do-review'.


Management capabilities lie at its heart. This fits the need for law firm supervisors to be properly trained and equipped to supervise effectively, for them to supervise appropriately and adequately in a way that leads to an overall improvement in performance, and for their development to be continuously assessed, appraised and improved.


A developmental approach is encouraged, with an emphasis on involvement, learning and an understanding of how individuals contribute to the organisation's performance. There is a radical departure from the concept of the supervisor as a controller to one in which the supervisor establishes a positive relationship with those being supervised.


It is clear that firms need to consider how best to meet the requirements of draft rule 5. They need to consider effective supervision within the context of learning and development and support, and how these approaches will not only secure regulatory compliance but can contribute to the firm's performance.


Lexcel and IIP set the standard and a joint Lexcel/IIP accreditation could be a desirable objective for real, sustainable performance improvement.


Paul Widdup is a member of the Law Society's law management section executive committee and a management consultant