The complexities of being a good lawyer
With changes to CPD, compliance specialists have a golden opportunity to develop the skill sets those around them need, explains Tracey Calvert
Being a good lawyer in 2016 requires so much more than simply having skills in a particular area of law and providing services which are not negligent. Of course this must happen, but we are required to demonstrate a number of additional traits in order to please our regulator, the ombudsman, our clients, and all the other interested parties watching us and the profession.
Demonstrating ethical awareness, being a team player, having business acumen, good communication skills and being a 'people person', doing the number work, plus an understanding of legal and regulatory standards are all necessary attributes of a good modern lawyer. Not so much to ask, really!
The clues about this need to display such a diverse variety of skills is clear from a study of SRA requirements. Principle 8 started the ball-rolling in 2011 with phrases like running your business, proper management, sound financial and risk management, and the requirement that everyone within the law firm makes a contribution to these.
While this does not appear to have survived the cull of the principles in the SRA's summer consultation, these attributes remain as expected standards in the proposed new SRA code of conduct for solicitors (using language such as 'standards of professionalism' and 'a framework for ethical and competent practice which applies irrespective of your role') and the proposed code of conduct for firms ('standards and business controls' and 'create and maintain the right culture and environment for the delivery of competent and ethical legal services').
Drill down a little, and the competence statement adds to these clues of what constitutes a fit for purpose lawyer. We are told, for example, that the SRA use a definition of competency which is the 'ability to perform the roles and tasks required by one's job to the expected standard'. Again, the phrase 'roles and tasks' implies so much more than simply completing the legal job in hand; the lawyer needs to be an impartial observer and trusted adviser, act ethically, have empathy, be articulate, a true officer of the court, and so on and so forth. This is clear from the narrative of the competence statement which includes headings such as ethics, professionalism, and judgement against which solicitors must assess their behaviours.
This creates challenges for managers and people with compliance titles, and for everyone who support them, in the workplace. How do you create the right environment for good lawyering? How do you ensure that everyone understands individual responsibilities and the common need to provide good services? How do you make an ethical response the default position and an integral component in the business strategy? How do you agree and set non-negotiable standards which you expect individuals to observe and how do you reconcile this with business realities?
Acting ethically requires commitment from the individual to behave properly. It requires knowledge of the standards set and published by the SRA and the ability, willingness, and confidence to put these into practice. Often, client and commercial pressures are given as a reason why this isn't happening but this is a very short term and sometimes career defining choice to make. It also has ramifications for the individual's colleagues.
I recently visited a firm where ethical dilemmas were posed to prospective employees during interview to sense test basic behaviours. This seemed extremely sensible to me; why wouldn't you want to satisfy yourself of a prospective colleague's ability to behave safely and properly at this stage of the relationship. They are, after all, a potential ambassador of the business.
In contrast to this, I was disturbed to read a recent SDT decision about a trainee solicitor who hadn't made the right choices and was now facing the consequences. The individual in question has been rebuked by the SRA and had an order imposed on him preventing him from obtaining future employment in a SRA-authorised law firm except with the regulator's permission. His failings centred on making the wrong ethical decisions: in short, this included misleading clients and his employer that claims were being progressed when they had in fact been struck out, failing to inform clients of offers to settle their claims, not attending court hearings, not complying with court orders, and misleading the court by preparing a statement in support of an application for reinstatement of a claim on the grounds that a court document had not been received when in fact it had.
Some concern must be expressed at the position which the trainee found himself in. In mitigation he admitted that he did not think he had the skills necessary to complete the tasks asked of him but he was unable to seek assistance. We do not know all the facts surrounding this case, but my questions of his colleagues would be as follows: Where was the team ethos, supervision, communication? In other words, how did this catalogue of events spiral out of control? Where was the challenge to what was clearly inappropriate behaviour?
Compliance specialists have a golden opportunity with the changes in continuing professional development to develop the skill sets that those around them need in order to be good lawyers. CPD is no longer simply a rush to accumulate hours in the frenetic Autumn training season. Instead, the need to reflect on personal development is the starting point and this can be harnessed to firm wide schemes to promote better lawyers and employees.
Again, in my experience, some firms are taking the opportunity to divert training resources and budget to development plans which will benefit not only the individual concerned but also promote the firm's particular ethos and values. This includes training on subjects such as SRA requirements and handbook knowledge, management training for those in supervisory roles, training for potential partners, and learning and development on the soft skills which make us all better ambassadors for our businesses and more rounded lawyers. This is exactly what is expected of us in 2016 and what counts to being regarded as a good lawyer.
Tracey Calvert is director of Oakalls Consultancy Limited