Making a statement: can a single definition of 'competence' raise professional standards?

The Solicitors Regulation Authority’s outcomes-focused approach to competence could shift responsibility for education and training on providers and employers. Director of education and training Julie Brannan talks to Jean-Yves Gilg about the regulator’s plans for a new compliance framework

Four months after former SRA chief executive Antony Townsend came up with his 'bonfire of regulations' the regulator is about to light the match with proposals for a single, universal 'statement of competence' that would apply to all solicitors, whether newly qualified or in senior posts and irrespective of the size of the organisation they work in or of their specialism.

It's early days but according to the Solicitors Regulation Authority's director of education and training Julie Brannan, initial research suggests a broad consensus about what should be expected of a competent solicitor whatever his or her context.

"This would not be limited to articulating what somebody has to do at point of qualification. It would be sufficiently general and generic to apply to all areas of practices, at all levels of qualification," she says. "It recognises that requirements and expectations change depending on the job role and the context. It's simply impossible to specify the nitty-gritty detail of each job role and each context."

Quite how meaningful in practice such a statement would be is still to be determined but it could go some way to squaring the circle of professional standards in a sector where organisations now range from sole practitioners to large City firms to alternative business structures. It should also apply more readily to prospective solicitors entering the profession via one of the non-traditional routes currently under consideration.

CORE ELEMENTS

The core elements of the statement - to be made public in the spring - are about ethics, professional judgement, technical skills such as research and drafting, and management skills including being able to prioritise and to work effectively with colleagues, clients and third parties.

Brannan (pictured) agrees that these characteristics are already found in the make-up of today's solicitors but this time, she says, the regulator's approach is different. First, it's not designed by somebody "sitting in their ivory tower" but in conjunction with the profession, consumers and stakeholders, and "gathering the empirical evidence to underpin it". And second, how the regulator intends to ensure compliance is changing, pushing the responsibility of producing competent solicitors on education and training providers and employers.

"The statement will not articulate the level or threshold standard," says the former Herbert Smith partner. "We need that to be able to assess individuals at the point of qualification, so there'll be another piece of work to accompany the competence statement articulating the threshold people need to demonstrate they can meet in order to qualify as a solicitor."

What the statement would actually look like hasn't been finalised. It may not even exist as a tangible document and could only come to life when a solicitor's competence is being questioned.

"We're looking at whether there needs to be a requirement for a formal CPD declaration," Brannan says. "The key thing is that what we'll be looking at is not compliance - whether somebody has done their hours, etc - but at the quality of the service provided. Is it competent, and if not, why not? Is it because the individual is not up to date with the law? Is it because they've not done CPD for the past ten years? If we identify a problem at this point, we'd expect a solicitor to show to us what they've been doing to maintain their competence."

In practice, this would pose a familiar challenge for the regulator: it normally only hears about standards negatively, where there are allegations of rule breaches via a complaint or tip off in an individual case, or from general sector research.

PROPERLY PREPARED

Expecting solicitors to be in a position to demonstrate their competence on request will not change that. The SRA's answer is to ensure that those entering the profession are properly prepared. This emphasis on prevention will involve pushing a greater onus on education and training providers to develop suitable training modules.

"The statement will signal to individuals who wish to qualify what they need to be able to demonstrate in order to qualify, and it will signal to course providers what they need to cover in their courses to enable their students to qualify," Brannan says. "It will also be relevant to the COLPs, who are responsible for assuring the competence of legal services provided by their regulated entity. This document will help them define what a competent solicitor looks like."

In the spirit of outcomes focus, the new approach will not prescribe the processes or framework training providers need to follow. The SRA's long-term objective is to set out the threshold standards that aspiring solicitors must reach, enabling the regulator to withdraw from specifying the detailed input requirements of courses.

"We don't necessarily say somebody has to do a degree or the Graduate Diploma in Law (GDL) and the Legal Practice Course (LPC) and then a training contract. It enables us to free that up so that providers can come up with a pathway or route that suits them and the market that they serve. Our approach will be to ask providers to demonstrate to us that this allows students to achieve their objectives. That's the basis on which we'll authorise them," Brannan says.

ENTRANCE EXAM

But that is only one of the options, which would still require the SRA to approve providers. A more radical one is to set an exam that all prospective solicitors would have to take at the point of qualification. In this case, there would be no need for providers to be approved and it would be an open market.

A decision at that level will not be made until next year but it will be an important step in opening up access to the profession. There is a rising tide in favour of alternative routes to the traditional pathway, in particular the potential of apprenticeships.

"There may be much closer integration between the three distinct stages of training," Brannan suggests. "So you may have people doing degrees while they're in a solicitors practice, and it may be that degrees integrate academic studies and the current elements in the LPC. So long as it produces students that meet our standards, that will be acceptable to us.

"We're not going to say, like now, this is what the pathway looks like, take it or leave it. Our role is to look after the standards, your role is to come up with the ideas."

This would give employers - law firms, ABSs, in-house legal departments - the opportunity to have a more prominent part in shaping tomorrow's profession. It would involve an active dialogue between education and training providers and employers. Not all of them will have the interest or resources, particularly those in smaller firms, but for those that do, this is the chance to play a critical role in what tomorrow's solicitors will look like.

 

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Jean-Yves Gilg is editor of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk

 

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TRAINING FOR TOMORROW CONSULTATION

Full details of the SRA's post-LETR consultation are on the regulator's website at http://www.sra.org.uk/sra/policy/training-for-tomorrow.page

The consultation on continuing competence closes on 2 April 2014.

 

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