Burning the old rulebook

A bonfire seems a good enough metaphor if you want to announce a radical plan with dramatic effect. So it seemed apposite for outgoing SRA chief executive Antony Townsend to unveil "a bonfire of education and training regulations" when he outlined the regulator's plan for the implementation of the Legal Education and Training Review. Let's burn the old rulebook and on its ashes construct a new framework based on outcomes, says the SRA.

Just as outcomes-focused regulation now underpins risk management and compliance in law firms, continuing competence of solicitors would be assessed by reference to competency outcomes. This would start with Day-One learning outcomes, through to an overhauled CPD system tailored to individual circumstances and needs, Townsend told delegates at the Westminster Legal Policy Forum last week. But as we were invited to contemplate the smouldering embers of prescriptive regulation, other fires were being lit in several corners of the new educational framework.

The SRA's plan would involve the regulator setting standards and expecting educational institutions, training providers and employers to "come up with effective routes" that achieve the desired outcomes. For law firms still getting to grips with OFR - take everyday issues such as the definition, identification and reporting of non-material breaches - this could be another source of uncertainty and confusion.

It may be early days, with formal proposals only scheduled for the end of 2014, but already solicitors have voiced concerns about the standard-setting process. The regulator will need to engage fully, on a very large scale, with the whole of the profession, if it is to come up with standards that are equally applicable in a two-partner firm in Cornwall and in a top 100 City practice, and in the in-house department of a blue-chip corporation as well as in the legal department of a local authority. And every lawyer and officer responsible for training should be in a position to readily determine the kind of development needed in each individual case without resorting to reading in the entrails of dead birds. But in light of the ongoing teething problems with OFR, that's not a given.

The current hours-based system is not perfect but for the vast majority of lawyers, it works. Most firms take training very seriously, not because it's a regulatory requirement but because of the professional risk. Many go beyond the mechanical process of clocking up the requisite number of hours. It matters because if you are not up to speed with technical knowledge or with general lawyering skills, you could end up giving the wrong advice and being sued. These are powerful incentives which the SRA should consider carefully before rolling out the OFR blanket.

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