Q&A with the SRA: Competence Statement

By Jean-Yves Gilg

Martin Coleman answers the profession's burning questions on the new training regime How can a solicitor reflect on the quality of their practice? As professionals, we constantly ask ourselves: 'Did my advice get the key issues across in a way the client understood? Did I negotiate the best possible deal for my client? Are there new developments in the law I need to understand?' Indeed, the essence of being a professional is that you take personal responsibility for keeping up to date and for the quality of your own performance. Over the lifetime of a career, law and practice change and experience expands: the law develops, client expectations vary, views on best practice mature, and responsibilities alter with seniority. Good practitioners take steps to ensure they adapt to changing circumstances and new ideas. Under the old regime, the implication was that by undertaking a number of mandatory hours in continuing professional development each year, practitioners would remain competent. This was misplaced and inadequate; it could not take account of the specific circumstances individuals faced at different points in their career. The new system recognises that in a diverse profession the Solicitors Regulation Authority (SRA) cannot specify what is required for each individual solicitor to remain competent. The responsibility better lies with individuals and their employers. What we can do is give individuals and firms advice and support in meeting that obligation. How can a solicitor identify whether they are competent or not? How such reflection takes place will vary. In many organisations, solicitors are subject to appraisals. In smaller practices, the process may be less formal, with individuals taking some time to reflect on their strengths and weaknesses, and perhaps discussing this informally with colleagues and others with whom they have worked. You might want to reflect both on particular matters you have acted on, thinking about what went well and less well, and also more generally on where your strengths and weaknesses lie. Employers can use the competence statement to support solicitors in this process. The statement can be integrated into performance management systems or competence frameworks to provide a structured mechanism for assessing whether a solicitor requires training to ensure they are competent. What happens if a solicitor identifies having more to do to become competent? Most of us are aware that our knowledge and experience has limits and that it would be improper to act beyond those limits without appropriate support. For example, if a commercial lawyer is asked to act on a domestic conveyance, they would be unwise to do so unless they have recent relevant experience or are supported by a solicitor who does have that experience. If there has been significant change in the law or procedure in a particular area, a solicitor should not advise on said area without ensuring they are up to date with those changes – it is a matter of common sense. What approach will the SRA take to ensure solicitors undertake learning and development? Firms and individuals have a clear regulatory obligation to keep up to date in order to provide a proper standard of service. This is not new. The SRA's primary interest is in whether a solicitor is competent, rather than in checking what particular learning and development activity they have undertaken. The SRA will be monitoring competence through thematic reviews of sector-wide issues, reviewing complaints and other data about the quality of work through its supervision function. Where it finds evidence of incompetence, the SRA will want to check what steps the solicitor has taken to maintain their competence. Failing to take adequate steps to maintain your competence may be an aggravating factor in any disciplinary proceedings. Does this then mean that solicitors have to keep detailed records which reflect their development needs? In larger organisations with established appraisal and training systems, it is likely that the internal systems will provide the necessary information. For smaller organisations, we are not expecting solicitors to establish complex new systems. Rather, they should be able to demonstrate they have considered their development needs and taken appropriate steps to address them. In areas of law and practice where there has been little change, where the individual solicitor is experienced in that area of practice and all is working well, a reasonable view may be that no material professional development is needed that year. In other circumstances, the new approach to continuing competence enables solicitors to learn in a greater variety of ways – doing file and case reviews, getting client feedback, learning from others in the work place, listening to a podcast or webinar. How you learn does not matter. The important point is that solicitors continue to maintain their skills and keep pace with changes in law and practice. SJ Martin Coleman is chair of the SRA's education and training committee