Statement of solicitor competence

Incoming changes to CPD will require a culture shift for many solicitors, including an increased focus on soft skills, says Susanna Heley

April 2015 saw the introduction of version 13 of the Solicitors Regulation Authority (SRA) Handbook. Aside from minor tweaks, which relate to the removal of transitional provisions affecting sole practitioners and changes
to the eligibility criteria for claims on the compensation fund, the headline change is really the introduction of the Competence Statement.

This is the bedrock upon which the SRA’s new approach to admission will ultimately be built and is also an integral part of the new approach to continuing professional development (CPD). Existing CPD requirements will be abolished with effect from
1 November 2016, but firms can ‘opt in’ to the new regime now
if they wish.

There are three parts to the Competence Statement, two of which – the threshold standard and the statement of legal knowledge – affect those seeking admission to the roll. The third part, the statement
of solicitor competence, affects solicitors throughout their careers and is intended to be
the yardstick by which solicitors should continually assess
their own skills and identify knowledge or skills gaps.

Demonstrating compliance

Importantly, ensuring that
you meet the standards set
in the statement of solicitor competence is also part of demonstrating compliance
with principle 5 of the SRA’s mandatory principles – providing a proper standard
of service.

The incoming changes
to CPD are going to require something of a culture shift
for many lawyers. It is unlikely
to be sufficient to continue to undertake courses by reference to a target number of hours or on the basis of updates in your own practice area; instead, solicitors will have to demonstrate a critical understanding and assessment of their own weaknesses against a fairly broadly phrased set of principles. Many of the benchmarks relate to soft skills, such as effective communication with clients
and others.

Given the link between
the statement of solicitor competence and principle 5, compliance officers for legal practice (COLPs) may well
need to be involved in the development of any training programmes, procedures, and systems designed to ensure that solicitors understand their new obligations. Firms may well wish to initiate mandatory training for staff and incorporate discussions about personalised assessments and training as part of their appraisal processes.

In theory, responsibility
for personal development and training rests with the individual solicitor, pursuant to the statement of solicitor competence. However, it is
part of a firm’s responsibility
to ensure proper standards
of service and comply with
chapter 7 of the SRA Code
of Conduct, which concerns management of the firm.Chapter 7 includes the requirement to have systems in place to ensure compliance with the principles (outcome (O) 7.2), to monitor and manage risks to compliance (O7.3), and to train individuals to maintain a level
of competence appropriate
to their role (O7.6). Accordingly, firms should now be considering the requirements
of the statement of solicitor competence and developing their processes to ensure that assessments and personalised training plans are properly documented and carried out.

I imagine that the biggest issue for firms will not be in encouraging solicitors to carry out these assessments – which
I suspect many solicitors carry out automatically (but perhaps somewhat unconsciously) in any event – but rather in ensuring that assessments are properly recorded so that compliance can be demonstrated to the SRA and COLP as appropriate.

Disciplinary sanctions

There is also a potential risk that the SRA may suggest a failure
to comply where, for example, negligence has been found. Within the requirements of
the statement of solicitor competence are obligations
to pay appropriate attention
to detail and to meet timescales and budgets. It is possible, therefore, that certain types
of negligence – for example, missing a limitation date –
could give rise to disciplinary sanctions. We are not going to know how such issues will play out in practice for at least a couple of years, but tying the statement of competence to principle 5 would seem to increase the risk of ‘ordinary’ negligence becoming a
conduct issue.

For now, firms and individual solicitors should take the time to familiarise themselves with the statement and consider their training needs moving forward. This is an issue which will entail some planning and policy changes, and which will require solicitors to think about their personal development, not only in terms of keeping up with changes in their own practice area, but also in critically analysing their soft skills. SJ

For more on the Competence Statement, see SJ's Q&A with Martin Coleman, the chair of the SRA's education and training committee

Susanna Heley is a solicitor at RadcliffesLeBrasseur