The Solicitors Regulation Authority’s recent change of stance on the future of continuing professional development (CPD) has attracted a mixture of praise and criticism.
Understandably, some training providers are not supportive, and some lawyers and commentators worry that we are ‘letting go’ of competence. They say the SRA is allowing firms to shelve – or ignore – CPD training, now that the current 16 hours requirement is due to go.
Let us immediately bust that myth. In adopting the new approach, which is still subject to approval by the Legal Services Board, we want to strengthen – not weaken – our commitment to competence so that consumers can have confidence in the legal services they use.
Does the existing approach, where we insist that individuals have to complete an arbitrary 16 hours quota, really make a difference to a lawyer’s competence? The answer has to be ‘no’. Good lawyers and firms will be focused on delivering good services without any input from the SRA.
Those that do not want to comply or just do not get the need will find ways to avoid, evade or even mislead. So rather than focus on the number of CPD hours taken, let us focus on the competence of services delivered to consumers.
The current training system has been in place for 30 years. The last few years have seen a dramatic evolution in how legal services are delivered. And technological advances enable everyone to have access to a veritable smorgasboard of learning options, from podcasts to e-learning packages. It is a changing landscape.
The approach of focusing on continuing competence, rather than time spent in training, also fits in with proposals in our current Regulatory Reform review which was launched on 7 May. We want to ensure that our resources are properly targeted and clinically effective in both protecting consumers that cannot look after themselves and supporting the rule of law.
That clear focus on our core regulatory purpose leads us to think more carefully about how we target our regulation and ensure it is proportionate.
During the coming months we will be developing a Competence Statement and supporting ‘toolkit’ to define what a good solicitor looks like. This will give both solicitors and firms guidance on where they need to focus their efforts in ensuring a good standard of service. A clear competence framework also demonstrates that we can deploy entry controls to develop flexibility and secure competence.
We are planning to release this guidance next spring. This is also when solicitors and firms can choose to opt in to the new system. In recognition of the culture shift the changes will require, we have decided to phase in full adoption until November 2016 for those who are less comfortable with the changes. This full package of support and guidance is consistent with our new approach of helping firms, especially small firms, to comply with our regulatory requirements.
We acknowledge that the departure from a quantitative measure of hours presents cultural challenges for some firms and solicitors. For global businesses, the changes may present less of an issue, since they often have budgets and systems in place to ensure they have appropriate training policies to attract and keep lawyers and clients in a competitive market.
But many small firms and sole practitioners tell us that a flexible approach to education and training that focuses on personal responsibility for development and competence is essential when running a small firm or practising alone.
As part of the changes, we will also insist on an annual declaration by firms and individuals regarding their training. This is not about getting rid of one tick-box and replacing it with another. It is about removing inflexibility while taking an existing process to remind lawyers of their responsibilities.
This will form part of the annual practising certificate renewal and underlines our commitment to compel firms to reflect on this aspect.
As far as monitoring is concerned, where we do have concerns about competence, we can investigate other relevant evidence. This may include a firm or individual’s complaints record or involvement with the Legal Ombudsman.
Where necessary, we will provide guidance or training as part of our regulatory toolkit. It may be that in certain circumstances where we identify worrying trends or common themes among firms we can tackle them using a supervisory model to bring them back on track.
And in some high-risk areas of work, perhaps those where life and liberty are at stake, we might insist on individual, before-the-event assurance of competence.
We are finalising some research which looks at how firms address their training. Early results indicate that most firms – and individuals – take training extremely seriously. Competent firms (and by association, competent solicitors) attract and retain clients, so it is a no-brainer to ensure that firms and solicitors are on the ball when it comes to staying ahead of the game.
Getting rid of the 16-hour constraint will give solicitors and firms the flexibility to maintain and develop a focus on their learning and development needs. It will also free the SRA as a regulator to tackle those who cannot – or will not – deliver good quality service to their clients.
Crispin Passmore is SRA executive director