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SRA needs a ‘reality check’ on its new CPD regime, says A&O risk head

Insurers 'uneasy' and call for greater regulation of UK lawyers 

8 December 2014

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By Manju Manglani, Editor (@ManjuManglani)

Greater regulatory oversight is needed to ensure UK lawyers meet their continuing professional development (CPD) requirements.

That's the view that emerged during a heated panel discussion at Managing Partner's Regulatory Compliance for Law Firms conference last week.

"The SRA's new continuing competence regime sounds like nirvana," said Annette Fritze-Shanks, head of risk at Allen & Overy.

"We need a reality check of what solicitors are capable of and have time to do."

Concurred Mark Solon, managing director of Wilmington Group's legal division: "Fee earners want to earn fees; compliance is not number one on their list of activities. Most solicitors don't have a clue about reflection."

No clarity on 'what counts' as continuing competence

The Solicitors Regulation Authority's new outcomes-based approach to CPD will end the current tick-box approach, which requires 16 hours of training annually.

Instead, lawyers will need to make an annual declaration that they have reflected on their practice and undertaken applicable training to maintain their competence.

Firms will have the option to switch to the new approach from 1 April 2015, which will become mandatory from November 2016.

However, concerns were raised about how CPD compliance will be measured, with panelists and delegates urging the regulator to provide greater clarity.

"What should an embedded competency framework look like? Will the SRA issue guidance on whether having internal discussions - something previously unrecognised as a learning tool - will count as training and reflection?" asked Fritze-Shanks.

"All of these things are great and will contribute towards competence," responded Julie Brannan, director of education and training at the SRA.

"If it works for you, that's great - there's no longer a list of what counts and what doesn't count."

Speaking from the floor, Colin Taylor, executive director of professional indemnity at Willis, suggested that insurers were uneasy with the new approach to CPD.

"From the insurer perspective, the general feeling is that there needs to be tighter regulation than the regulator is allowing," he said.

"I don't think insurers like the removal of the compulsory element at all. There needs to be a stick - the regulator is trusting the profession a bit too much. We see the bad bits too often, we're throttling back on PII recommendations.

"The vast majority of the profession need good controls and CPD was one of the good things about the profession."

However, Brannan strongly disagreed, arguing that the new system provides insurers and clients with better assurance of professional competence.

"I think this is tougher than doing 16 hours' CPD compliance - lawyers will have to take personal responsibility for training and ensuring competence," she said.

"The old CPD system was a tick-box exercise, we received the completed forms but we never checked whether people actually did their training. It was not a vigorous system in the past.

"It's more organic now, there is an opportunity to embed in it your own firm's systems and processes."

Taylor was still concerned, however, and asked if the new regime could be phased in differently.

"I wonder if it would be better to have a hybrid approach to start with, where lawyers have to meet, say, half of the CPD hours, giving them more free time for other forms of learning?" he asked.

"The legal profession needs to maintain its professionalism. Firms that get it right and reduce their PII claims in a year could halve their premiums."

However, Brannan was strongly against the suggestion of a hybrid approach.

"We need more flexibility than that - there is no one-size-fits-all approach now, the new system allows firms and their lawyers to meet their obligations as they see fit."

Solon argued that the new CPD approach will require "a complete cultural shift" in law firms and that the SRA should recognise the need to handhold law firms through the process.

"Many firms still have their heads in the sand about the changes to CPD," he said.

For Fritze-Shanks, the success or failure of that cultural shift will ultimately be in the hands of the firm's partners.

"The partner population will be critical in ensuring associates are engaging with training; partners need to take the lead on continuing competence."

SRA to take a reactive approach to CPD compliance

Asked how the SRA would enforce its new approach to professional competence, Brannan suggested that a reactive approach would be used.

"If there are complaints or issues which arise, we will take steps including going into the firm to investigate whether there are any problems with the quality of client work and, if so, why there are problems," she said.

"If it is found that there was a lack of proper training, that will be considered an aggravating factor. You will need to produce a record showing that you have taken training and reflection seriously."

The SRA's head of training was then asked whether guidance would be given on how lawyers should record their CPD activities.

Brannan said that, in spring 2015, the SRA will publish online a continuing competence toolkit which will include examples of good and bad reflections on legal practice and how to record personal reflections.

However, she added that the regulator would not be prescriptive about what form CPD records should take.

"We don't want to specify how lawyers should record their learning - it depends on the size of their firm. Lawyers can record their learning informally or formally," said Brannan.

"Lawyers just need to say that they are taking training seriously, that they are keeping up to date, and that they can show it. You will know what is appropriate for your circumstances, so just make sure the record is intelligible for your firm and your regulator."

Commented Solon: "The new regime should mean the end of the ring binder of coffee-stained attendance certificates. There should be proper records of the reflection of training needs, the selection of what is appropriate and the collection of the activities undertaken."

Concerns were also raised as to whether the SRA's stated approach of trusting lawyers' own judgement on their level of competence would be as accommodating as it sounds, particularly if the new approach results in lawyers spending less time on CPD.

According to a recent Managing Partner survey, the new continuing competence regime would likely result in lawyers spending less time overall on learning and development.

Fritze-Shanks suggested that lawyers will need different types and levels of training at different points in their careers, and so partners would likely spend fewer hours on CPD than associates.

"When they are younger they will need more technical training, and when they are appointed as practice heads they will need soft skills training on managing teams. Their training needs can change, so the new regime supports that," she said.

"The SRA says it is very difficult to be prescriptive, so I hope the level of training undertaken by the lawyer considering the point they have reached in their career will be taken into account.

"I hope that, if a lawyer makes a mistake when working at 3am and a complaint is made by a client, it won't be used against the lawyer if he only did two hours of training that year because he is at a senior point of his career."

Responded Brannan: "Reflect and do what is necessary and that will be fine."




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