Change is coming to continuing professional development and the SRA wants to hear your views.
Members of our profession hold divergent views on many major issues, particularly regulation. There is, however, a high degree of consensus on at least one thing – that the current system under which all solicitors are required to undertake 16 hours per year of compulsory continuing professional development (CPD) needs to change to reflect the realities of current legal practice. This month, therefore, we issued a consultation document proposing significant changes to the CPD system.
The concern is that the current system is a ‘one-size-fits-all’ approach to qualification development needs that vary significantly between solicitors; and that it fails to take account of the fact that, for a significant proportion of legal services, it is the entity (a traditional law firm, an alternative business structure or an in-house legal department) that has a material influence upon the quality of service delivery and the training of staff.
We received suggestions that we should tighten up the CPD requirements by being more prescriptive – perhaps increasing the number of hours required and mandating certain areas to be covered, such as ethics and aspects of management.
We rejected more prescription for three main reasons. First, any attempt at prescription would have to be at such a level of generality as to be useless for all practical purposes. Consider what commonality there could be between the CPD requirements of, say, a 25-year-qualified managing partner of a global law firm, a newly qualified high street conveyancing solicitor, and a five-year qualified local authority lawyer specialising in child protection.
Second, even for solicitors performing similar roles, CPD needs will depend on particular circumstances. For example, a litigation solicitor in the middle of a long trial is unlikely to have time for, or need to undertake, CPD at that point, while for others (perhaps those finishing a trial) they may be at the right stage to undertake some additional learning and development. The form of CPD required will also vary. For some a traditional training course may be appropriate, for others more informal study and discussion with colleagues may be the best option.
Finally, most solicitors work in entities and the training regime is largely dictated by the organisation. The entity (a traditional law firm or an ABS) will have a regulatory responsibility for ensuring competent service whether delivered by solicitors or others. It makes sense, therefore, to focus on the entity as well as the individual, with the entity having a responsibility to ensure that all staff involved in delivering legal services are appropriately trained.
Indeed, entities compete with each other for the most able solicitors and other staff, and the performance of their employees will be an important factor in their ability to differentiate themselves in the market and win business. A regulator should be very cautious about imposing uniformity in circumstances where flexibility can lead to more effective competition, innovation and change.
We therefore decided to consult on approaches to liberalising the current system. The most radical option, and the one that at this stage we consider the most appropriate, would entirely remove the current prescriptive CPD regulations and rely instead on existing provisions in the Handbook and Code of Conduct, requiring regulated entities and individuals to deliver competent legal services, and train and supervise their staff.
There would be no compulsory rules concerning the length or content of CPD. We would provide non-mandatory guidance to entities and individuals, to help them identify what training best suits their individual needs and level of personal development. This is option 1 in our consultation document.
There are two other options we are considering. Option 3 is closest to the current system. We would continue to prescribe the minimum number of hours of training required. Unlike the present system, however, CPD would need to relate to actual or likely practice and the reporting obligation would be imposed on the entity, rather than the individual. We would allow a wider range of activities to count, recognising the value of on-the-job learning.
Option 2 would retain a prescribed CPD scheme but based on a reflective cycle with no minimum hours. CPD regulations would require solicitors to identify and document their training needs in a development plan, implement that plan and evaluate its effectiveness on a documented annual cycle. The development plan could also be linked to internal appraisal processes and to the Competence Statement for solicitors that we are in the process of developing and on which we will consult later in the year.
To be clear, we consider CPD to be vital in ensuring the continued competence of individuals and entities. It is difficult to conceive how, over a working life of up to 40 years or more and in the rapidly changing legal and professional environment in which we all work, a solicitor can remain competent without undergoing regular CPD. The question is to what extent it is possible or desirable for the SRA to mandate the form and content of such CPD.
Even under option 1 we shall be interested in the extent to which those we regulate have considered CPD needs and acted accordingly, and take this into account when exercising our supervisory and enforcement powers where there is a risk that appropriate standards of competence will not be met.
Change is coming and we invite views from the profession and others on the options described in our consultation document. Our mind is not made up and we would encourage a debate. Members of our education and training team will be happy to attend meetings to discuss the proposals, and we also welcome written comments. We have a dedicated website for Training for Tomorrow (our overall programme for reform of legal education and training) which has its own email and Twitter account – see sra.org.uk/t4t and we want as much interaction as possible.
As part of the consultation, we are organising a series of roadshows and a webinar during March, which we would encourage you to attend to hear our proposals as well as to make your own views known. The consultation closes on 2 April 2014.
Martin Coleman is an SRA board member and chair of the education and training committee