Continuing competence: Between welcome flexibility and fear of red tape

Law firms have welcomed the opportunity provided by the new continuing competence requirement to take a tailored and more flexible approach to training and development but many are concerned that the new regime will make it more difficult to ascertain compliance with confidence.

Earlier this month, Solicitors Journal canvassed readers for their thoughts on the new regime and the steps they have taken to comply with it. The survey, believed to be the largest one to date on this issue, showed that nearly two-thirds of solicitors believed the regime would allow them to undertake training that was more focused and relevant to their personal practice (61.7 per cent). Greater flexibility was also seen as a positive by more than half of respondents (51.2 per cent), and the emphasis on personal responsibility was also perceived as a main advantage (44.9 per cent). ‘Can it be any worse than mindlessly collecting points?’ commented one respondent.

Overall these findings are consistent with the results of a similar survey carried out two years ago, when the Solicitors Regulation Authority unveiled its new approach. A few differences are perhaps worth noting, however.

In 2014, focus and relevance was only regarded as the second main advantage with less than 50 per cent of respondents mentioning it (49.3 per cent). Flexibility was the main one at 55.3 per cent. At the time, nearly a quarter of respondents (22.9 per cent) also saw the new regime as a way of spending less on training, compared with just over 10 per cent today (10.5 per cent). A significantly greater number now believe that it will lead to greater innovation in learning and development: 21 per cent rather than the relatively low 12.7 per cent in 2014. But a sizeable – although smaller – proportion of respondents continue to not see any advantage in the new regime (22 per cent, down from 29.8 per cent in 2014).

The new regime is based on the SRA’s outcomes-focused approach to regulation, a concept introduced in 2011. It caused widespread uncertainty at the time, and another set of findings suggests this feeling still lingers. More than half of respondents (56.4 per cent) said the continuing competence approach would make it harder to be confident of compliance with the rules, while 43 per cent said it would be more difficult to ascertain what training was required. Almost half (45.4 per cent) even think this could lead to the misapprehension that training is no longer necessary.

‘As a former training partner, my most difficult colleagues were those over 40 who refused to attend training sessions,’ one respondent said. ‘But for the minimum hours’ requirement, they would have had no incentive to undertake any training. The new competence regime with its self-certification allows these groups of people to become less skilled.’

The reflective process

At the heart of the continuing competence process, and the biggest shift from the current hours-based approach, is the reflective process. Solicitors have welcomed the element of personal responsibility this requires.

‘The old system was easy,’ says the SRA director of education, Julie Brannan, in response to comments that the new regime is not as clear as the minimum hours’ requirement. ‘But reflection doesn’t need to be complicated. It’s about thinking about how you learn and change and improve your practice.’

For Catherine Moss, partner at Winckworth Sherwood ‘the challenge is to make solicitors keen to embrace this approach to learning and development, and make them realise that, in the main, that’s what they’ve been doing throughout their professional careers. But they’ve not been used to that; they’ve not been trained to think about understanding where their skills gaps are and what each of them needs to do to bridge them.’

The SRA has not prescribed any requirement about the systems firms should put in place. Most say the new L&D expectations will be woven to a greater or lesser extent into existing appraisal or other competency assessment frameworks.

‘We’re looking at aligning the new approach with the Lexcel framework, which already involves strict requirements, for instance in terms of money laundering or diversity,’ says Diane Parker, head of personal injury at six-partner firm Atherton Godfrey. ‘People are already expected to maintain a log recording what training they have undertaken and how it has helped. People take responsibility for that, which already involves an element of reflective learning. Each department has also drawn up a development plan; it starts with sitting down at appraisal time and discussing gaps in knowledge. For personal injury lawyers, we’re also looking at getting APIL accreditation.’

Nine-partner firm Thackray Williams took the opportunity the new rules present to roll out a new firm-wide competence framework that will apply to all staff, not just lawyers. The reflective process will be a key component, involving discussions with line managers and the human resources department. ‘These conversations already happen, and HR keep CPD records. The reflection process will allow people to focus on their own particular needs. Even within a department, people can be quite specialised, for instance, within our private client team, some people do just power of attorney work. The new approach will allow them to focus more tightly on their needs,’ says the managing, partner Sean Sanders.

Over at five-partner firm Ward & Rider, the reflection process will start with an initial planning meeting involving an HR executive where a learning and development programme will be agreed. This will be recorded in lawyers’ personal files and they will be prompted by email to update their records after a training event. The firm is one of a few Solicitors Journal spoke to that looked at the regulation of legal executives. ‘We have a lot of legal executives at the firm and the reflective process is built into the approach to learning and development,’ says compliance officer Victoria Taylor. ‘We were familiar with this approach and it seemed logical to extend it to all our lawyers.’

‘It’s good to see that most are integrating the new approach with existing systems; they’re not reinventing the wheel, it’s cheaper and easier to implement. That’s aligned with what we are doing,’ remarks Brannan.

Top 100 firm Gateley has gone further, however, developing a specific learning management system for fee earners, which mirrors the SRA’s four core competency areas, where each member has their own ‘MyCompetency’ portal. Partner Sophie Brookes says reflection time has been built throughout the system, from identifying development needs to reporting back after attendance at an event or undertaking a particular activity. L&D is also included in the existing appraisal system, with annual and six-monthly reviews.

Ten-partner firm Stephen Rimmer has also invested in specific L&D software. Lawyers have their own area on the system, which includes a video on the continuing competence regime and factors in compulsory areas such as money laundering and data protection. ‘After discussions with their managers or heads of department, lawyers select the competences they’re going to work on in the coming 12 months and how they are proposing to do that. The system stores it as an event in your calendar and pings you for feedback afterwards,’ says family law partner John Stebbing.

But it’s perhaps the ability to include activities undertaken as part of the day job that lawyers have hailed as most progressive.

Doing the day job, but not just

All the firms we have spoken to have set up mandatory training in core professional areas such as money laundering, client care, and data protection. The ability to now include everyday work such as research or mentoring has been well received.

‘Working on a case now counts, but the key extra bit is the reflection,’ explains Brannan. ‘It’s an essential part of the process before you can sign the declaration. Stand back, reflect: are you satisfied that this has addressed a learning requirement?’ she continues before urging those who haven’t yet come to terms with the concept to check the SRA’s toolkit.

‘Being able to capture the work done as part of the day job is one of the good things that came in with the review,’ says Gateley’s Brooke. ‘If a fee earner needs to improve their negotiation skills, they can go on a course, but it’s much better if they sit in with a senior solicitor in a negotiation meeting and build that into their learning and record it.’

‘There is more scope to select reading and research undertaken, as well as general know-how which can be gained from clients and discussions. Now it’s all captured in the system and it’s more rounded,’ says Lupton Fawcett’s Tom Whiteside.

Lawyers at Ward and Rider will also be expected to capture time mentoring where relevant. ‘For instance, there are regular meetings with senior lawyers to review and discuss quantum. With proper analysis and reflection, these could be recorded as L&D time,’ says Taylor.

But any recording of this kind of activity must pass the reflective process test. ‘These activities can and should be captured as L&D but lawyers must consider whether this is meeting a learning and development need, and they must document it. It could be helping a junior lawyer, or reviewing a novel document,’ says Winckworth Sherwood’s Moss.

Lawyers fear, however, that all these adjustments come at a cost, whether in time or administration.

More red tape

‘Records are now more detailed and lengthier than they used to be,’ comments Whiteside, suggesting more time is spent on the administrative aspect of L&D.

‘With hindsight, the new regime may lead to far greater red tape for firms,’ remarks one respondent to the survey. Another says: ‘There’s a risk that bureaucracy takes over – that a solicitor has been conscientious in the learning and development undertaken but not recorded it all. The new regime appears in respect of how and what to record’.

‘We wondered whether there would be a risk of a drop in training, but people now seem more engaged and thinking about personal needs,’ adds Gateley’s Brookes. Like others in larger firms, Brookes is able to offer a professional support structure, but she says ‘smaller high-street firms, which haven’t got the scale, are probably finding it harder to put a suitable structure in place.’

Overall, lawyers are perhaps not as negative about the new regime as they were two years ago. That’s not to say they are wholeheartedly positive. Asked whether they thought lawyers would be trained more effectively under the new regime, less than a quarter of respondents (23.9 per cent answered ‘yes’; one in five (20.1 per cent) answered ‘no’; and almost one-third (32.5 per cent) said there would be no change.

The continuing competence concept was born from the funding pressure on the SRA and the need to take a realistic approach to regulation where solicitors are empowered to take control of their own requirements. There is no reason it shouldn’t work, but both the regulator and solicitors will have to work at it.

Jean-Yves Gilg is editor in chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg