Rachel Rothwell

Freelance Journalist,

Changing the rules

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Changing the rules

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The SRA’s continuing competence regime marked a big change from the CPD rules. Rachel Rothwell examines what this meant for solicitors and whether further change is afoot 

Many solicitors who qualified before 2016 will recall that growing sense of panic as the professional year began to draw to a close, and the eternal-sounding 16 hours of required continuing professional development (CPD) remained unfilled.

In September and October, however, their mailboxes would be flooded with adverts for CPD-accredited courses. These might not be particularly good – or even relevant – but solicitors would need to pick some quickly or kiss goodbye to the ability to continue practising as a solicitor.

In any event, if the training wasn’t very useful, a solicitor could always hotfoot it back to the office as soon as the trainer had obligingly signed the CPD form.

Those were what some would regard as the bad old days of CPD, before the Solicitors Regulation Authority (SRA) introduced a different approach in November 2016. Pamela Henderson, senior lecturer in law at Nottingham Law School undertook a review of the CPD regime for the SRA in 2012. She is all too familiar with the problems of the ancient regime.

Inflexible

She explains that, in theory, the straight- forward requirement to achieve 16 hours’ accredited CPD was quite flexible, enabling solicitors to pick and choose whatever training they wanted. But the practical reality was different.

“What we found was that people weren’t taking advantage of the flexibility and choice at all,” Henderson says. “And what was inhibiting them was cost; and whether they could find training that was really relevant to them.” The cost factor was exacerbated by a sense that most of the best training was in London, meaning that travel and accommodation would need to be added to the overall bill.

In practice, most solicitors were turning to the mass market ‘legal update’ style courses that were prevalent throughout the country in September and October to get their CPD points, as Henderson found. “These were quite cheap, and they were accredited”, she says. “But accreditation was not a mark of quality, as it should have been.”

During her in-depth research, Henderson discovered that the requirement to fulfil 16 hours of accredited training was often pre- venting solicitors from being able to access other training, which would have been more useful but was not accredited. She cites the example of lawyers working in local government and other public sector environments.

“They are working in an environment where they are surrounded by non-lawyers,” she notes. “There were a lot of complaints [from these lawyers] that they could not get the training they wanted from accredited courses. Local government lawyers would say, actually, the training with the most value to me is the non-legal stuff – business management; public procurement (from the non-lawyer’s point of view); finance; sophisticated tax. But they found that there was no budget left to do the training that really mattered, because they needed to do the accredited hours. “So [CPD] had become a tick box exercise that actually constrained people from doing other things.”

All change please

In November 2016, however, these problems were swept away with the introduction of a completely different approach – the continuing competence regime. Gone was the requirement for solicitors to carry out a set number of hours’ training. Gone, too, was the notion of a CPD-accredited training course.

Instead, solicitors must now make an annual declaration that they have “reflected, identified and addressed their learning and development needs”. But how they actually fulfil these needs is up to their own professional judgement.

As Alan East, chair of the Law Society’s Training and Education Committee (TEC), explains: “The SRA sets out the competences that you need to have as a solicitor. You need to be able to say what you have done to develop these, but you don’t have to show exact hours. I would advise anyone to keep a record of what training they have done, in case the SRA comes knocking.”

The SRA admits, however, that it will only check up on what CPD a solicitor has done if it already has “an issue with the standard of conduct of a solicitor”; or if it is conducting a “thematic review” of a particular practice area. Does this mean there is a danger that solicitors will no longer do as much training as they should?

Henderson recognises that this could be a problem: “During our review, you did get some lawyers saying that the only benefit of the 16 hours requirement was the professional discipline that involved. You knew you had to do it. Clearly, once you get rid of that, you do leave people vulnerable to pressures of work.”

For Adam Dyl, associate solicitor at Anthony Gold, the current system is a lot more involved than the old regime. “It forces you to think more,” he explains. “The old system wasn’t necessarily targeted at developing specific areas. But now, you have to take more of an active approach in your professional development – which is how it should be. Your development plan is based on your assessment of your competence, and areas for development. It’s more involved, but also more worthwhile.”

Dyl adds that while some solicitors may not spend as much time on their development plans, those who are accredited or re-accredited on Law Society panels will need to produce their training record as part of the process, and so the requirements must be taken seriously.

“It might be more time consuming, but we do have a professional obligation – and that is part and parcel of being a solicitor,” he remarks. The regulator itself is satisfied that the cur- rent ongoing competence regime is working well.

Last July, it published the results of its research into how the rules are working. The SRA visited 20 law firms to find out how they were approaching continuing competence; and conducted an online survey which attracted responses from nearly 500 firms. The results were largely positive.

According to the research, 40 per cent of firms reported that they now offer more learning and development support to their lawyers, while 52 per cent said they offered the same amount as under the previous system. Only 9 per cent admitted to having reduced their focus on learning support under the new regime.

But can these figures be trusted? Wouldn’t firms naturally be reluctant to tell their regulator that their lawyers do not do as much learning as they used to? An SRA spokesman tells Solicitors Journal that the regulator does have confidence in these statistics, because they were born out by what it saw in the firms it visited – and where it inspected records.

So how have solicitors taken advantage of the new flexibility in terms of how they learn and develop? The SRA research showed they are now making more use of networking, training from barristers’ chambers, e-learning, shared learning and group discussion, peer-to-peer informal learning and internal seminars.

But interestingly, of the 20 firms the SRA visited for its review, eight had kept the approach of setting their lawyers a target number of hours’ training and development per year. This ranged from 15 hours to 104 hours annually (or two hours per working week).

For Henderson, one of the positive aspects of the current regime is that the competences that solicitors must be able to demonstrate are now more balanced towards the skills that solicitors need, rather than just legal knowledge. She muses: “The competences are thoughtfully written, and there is greater emphasis on the skills and personal elements from day one.

Young lawyers always worry that they don’t know enough law, so under the old system they were very focused on legal updates, but not thinking about personal skills. “Things like communication, empathy, responsiveness, being practical and realistic – young people tend to see these as skills they need in the future, without realising how long they take to develop.”

But Henderson worries that the profession as a whole is still not focusing enough on personal skills. “You do see the headlines, with young lawyers under pressure, toxic environments, people making mistakes and being struck off. You have got to question why people don’t feel able to speak out, and what are the people management skills of the senior lawyers who should be looking after them?

“Are they failing to see it when someone has reached their limits? That is a most pressing concern. Most lawyers don’t work in a one-man band – there are people around them. We need to think about what our shared values are as a profession, and what does that means in terms of how we deal with each other.”

A swinging pendulum

The SRA may have adopted a light touch approach to monitoring the new freedoms of its ongoing competence regime, but solicitors should not get too used to it. There are signs that the regulatory pendulum could be about to swing the other way, as the profession’s overarching regulator, the Legal Services Board (LSB), has now got the issue in its sights.

In January, it launched a four-month call for evidence on a new project to assess whether “regulators have appropriate frame- works for continuing assurance of professional competence throughout the careers of the people they regulate”.

Why has it decided to focus on this issue? The LSB asserts that while consumers can work out for themselves whether a lawyer was polite and efficient, it is harder for them to judge how good the “technical quality of work” was. This means they rely on there being “checks in place to provide quality assurance”, states the LSB.

In words that many lawyers may find ominous, the LSB observes that unlike other professional sectors such as healthcare and teaching, “there is no regular, formal assessment of legal professionals during their careers beyond requirements for continuing professional development”. It has decided to consider whether this status quo is “sustainable” and does enough to protect the public interest.

In March last year, then LSB chief executive Neil Buckley gave a glimpse into the board’s thinking when he held up the medical profession as an example of how new methods for proving competence have been pioneered. He said this included a “reflective discussion” that GPs must undertake when going through the revalidation process, in which medics can show what technical knowledge they have acquired in the past year.

Buckley added: “Every year a GP has to get feedback from patients they have treated in the year and reflect on what that says, and provide a report about concerns that have been raised in that feedback. That is the type of modern system they have in other professions.”

Henderson sees the value in solicitors needing to show that they have properly ‘reflected’ on their development, but warns that the way it is evidenced should not be too prescriptive.

She says: “Learning doesn’t happen in a tidy, linear way, and reflection is about taking that time to think about where you are going, and how you need to get there. That is valuable in itself.

“You can’t pin down every bit of learning that takes place, and you don’t need to. But you do need that element of self-awareness and planning. It’s about recognising that something has happened, and whether it was good or bad, and what can you learn from it. What will you keep doing, and what will you change? If you changed something, did that change work? This kind of reflection is a crucial part of learning.”

Henderson suggests that this could fit naturally into a law firm’s existing appraisal system. “If the firm already has the system in place and [the reflective discussion] is documented, then it is arguable that this would not add an additional layer of bureaucracy.

But you need to stay away from the idea that you have got to transfer things into new paperwork in different ways. The regulator needs to be satisfied that a system is in place that meets its requirements, but it should allow firms flexibility to construct their own system. You don’t need a straitjacket for how they get there.”

What about the prospect of solicitors needing to obtain client feedback on an ongoing basis? East, who is also a senior law lecturer at Coventry University, notes that in the academic world, student feedback has become an important tool for improving. “Having feedback from consumers and clients is important, and maybe it would be a good idea for the solicitor to be informed by that,” he suggests.

But he also spots some potential difficulties. “Quite often what the client wants to hear is not what the solicitor has to tell them,” he notes. “For example, in the criminal law, you might have to tell the client, ‘No, you’re not going to get bail’.” This clearly poses a problem in relation to fair client feedback.

Plus there are bigger concerns regarding the potential burden on the profession of such a scheme – particularly where rival providers may not be subject to such onerous requirements. “This is why we need to hear from solicitors, to gather their views”, the TEC chair adds.

Dyl is confident that the profession will cope if further obligations are introduced in relation to solicitors’ continuous development. He does not resent the extra time that he now spends on CPD in the current regime. “It may take longer, but it is all about your own professional development”, he notes. “At the end of the day, that has got to be a good thing.”

Rachel Rothwell is a freelance journalist