The great training conundrum
Solicitors Journal's first CPD survey since the new regime was introduced in November 2016 reveals a profession struggling to come to grips with a far less prescriptive system
When the Solicitors Regulation Authority (SRA) unveiled its new-look continuous professional development (CPD) regime in 2015, it promised to liberate lawyers from the minimum hours’ requirement and empower them to pursue a more flexible style of training.
The new competency-based approach had been available for solicitors to move to voluntarily for 12 months but was made compulsory on 1 November 2016, at which point a survey by Solicitors Journal revealed that just 26 per cent had done so.
Just over two years on, the Journal has revisited the regime with a survey exploring how attitudes have changed since it was introduced to all firms.
We found that 43 per cent welcomed the flexibly offered by the new approach, down slightly from the 50 per cent that anticipated that advantage in 2016.
The minimum hours’ requirement for continuous development had been in place for many years and was inherited by the SRA from the Law Society. As such, it
is perhaps understandable there was a reticence among the profession to move away from it.
In fact, this month’s survey shows that 14.9 per cent of firms have kept some sort of minimum hours’ requirement, which is down from 29.5 per cent in 2016.
Curry Popeck partner James Whitely said his firm opted to retain a minimum hours’ requirement as part of its CPD policy because it feared a reduction in standards. “We thought if we kept a certain minimum level of hours and kept doing formal activities it would help us to keep up to date and keep standards high”, he explains.
“We’ve said don’t do any less, but we can’t do what we were doing before because that’s not compliant. We have to go through the self-identification process, using the precedents that are provided by the SRA and find where we need training, and we need to prepare a plan as to how we’re going to address that, and then show what we’ve done. So, the 16 hours has to be targeted.”
Under the new regime, Whitely believes there is a risk that self-assessment of training needs could lead to less well trained solicitors.
“They could theoretically examine their requirements and possibly conclude that they didn’t ned any training”, he says. “And they probably would be wrong in doing that and could open themselves up to sanctions, but it’s very hard to enforce it because it’s so vague, that’s the issue”.
Whitely is not alone in his assessment of the risk. In fact, even back in 2016 our survey showed a fear that it would be harder to comply with the less prescriptive regime.
Our results at the time revealed a genuine concern that lawyers would be under the misapprehension that, because there was no longer a minimum hours’ requirement, training itself was no longer compulsory.
This year’s results reveal that far from feeling more comfortable, lawyers are still unclear of their obligations and fearful that despite identifying the training they feel they most need, it might not be enough to stay compliant.
Two of the most telling responses from this year’s survey reveal that in two areas of major concern for the profession when the new regime was introduced, attitudes remain identical two years on.
In 2016, 57 per cent of respondents told us that they felt it would be harder to be confident of compliance under the new CPD regime. Exactly the same proportion said the same thing this year.
Likewise, in 2016 we found 46 per cent of respondents to the survey said they were concerned about a misapprehension that training is no longer compulsory. The same figure reported the same concern again this year.
This lack of clarity over what is required is borne out anecdotally too, with one Milton Keynes-based partner, Simon Stone from Kingsley David, telling us that as the president of his local law society he saw the number of lawyers attending training fall by at least half when the new regime came in.
“Of those that were traditional users, we saw a tail off ”, he explains. “We were inquiring as to whether it was because they were too busy, but people said it was because they felt they didn’t need to do it now.
“They could read an article or look at a webinar. And, yes, you can, but I got the clear impression that people didn’t understand how important it is still”.
Stone says he feels lawyers are not cognisant enough of the risks associated with not adequately complying with the new CPD requirements, however loose they seem to be.
“Really the SRA has just got another stick to hit us with and what people aren’t realising is that they will blame you for all sorts of things now because if you are found to have made a mistake it will be down to not having trained yourself. That subtlety I don’t think has hit home loud enough”.
Stone admits, however, that the fall in attendance at law society training has not been universal. He says his conversations with law society presidents in other regions have revealed that some have seen a decline and others have not.
However, his experience implies that in some areas where lawyers are already feel- ing under financial, time, and regulatory pressure, formal training for the sake of CPD is an area that is at risk of falling by the wayside.
Interestingly, a look at survey responses from smaller firms – those that identified as having revenue below £1m — shows subtly different priorities when it comes to what they regard as the main disadvantages of the new system.
Of this group 41.7 percent said they found it harder to be confident of compliance, and 37.5 per cent said they were concerned that there was a misapprehension that training was no longer compulsory.
But the greatest percentage, 54.2 per cent, said they found it harder to ascertain what training they required, while 45.8 per cent were perturbed by the increased adminis- trative burden.
Doctoring the system
Extra admin may well become an even greater issue if the Legal Services Board starts looking outside the legal profession for inspiration as to how technical competence could be assessed and the SRA takes this on board.
LSB chair Dr Helen Phillips first made the suggestion in her exclusive interview with this Journal in January. Earlier this month, outgoing chief executive Neil Buckley made similar allusions.
Touching on the issue of monitoring continuous competence at the Natwest- Symphony Legal conference on 18 March, Buckley referenced the “reflective discussion” process that is in place for the medical profession.
“Every year a GP has to get feedback from patients they have treated in the year and reflect on what that says and provide a report about concerns that have been raised in that feedback. That is the type of modern system they have in other professions”, he said.
He said the current system did not ensure that lawyers were “changing and adapting” to an extent that provides “confidence in the technical quality”.
Responses to our survey do seem to show relatively little change in the way that firms are identifying training needs or monitoring what has been done.
Of this year’s 94 respondents 44.7 per cent said they had amended their learning and development (L&D) policy and 31.6 per cent said they had amended their appraisals policy.
However, 47.9 per cent said they were mostly using their existing L&D processes under the new regime, with 28.7 per cent saying they had tweaked the existing processes. Just 12.7 per cent said they had set up something completely new.
Far fewer than previously said they were planning to use their appraisal system for monitoring compliance, just 20.2 per cent this year as opposed to 53 per cent in 2016.
London-based Bates Wells Braithwaite partner Philip Trott said his firm was a rare example of one that did establish an entirely new system in light of the changes.
“Now you have to log onto a system where you have to think about what you need to do,” he explains, “and no-one knows if they’ve thought enough about what they have asserted to make sure if we had a sur- prise visit from the gurus from the SRA, we would pass”.
He says the system is a third-party website designed to guide lawyers through the nec- essary reflective process to identify and record the training they need and have done.
“You are asked to say how you have ad- dressed certain sectors of knowledge or experience, but you can stick your finger in the air as to whether or not you’ve done enough”, he says.
“We try to think of a form of words that will satisfy a person that’s going to be second guessing what we’ve done and hope for the best”, he adds, capturing the universal confusion emerging from a less and less prescriptive regulatory regime.
Quality of training
The proportion of respondents that feel lawyers will be worse trained under the new regime was 45.7 per cent, compared to 20 per cent in 2016 – an alarming rise. This may be down to the growing awareness that people are simply doing less training.
However, APIL president Brett Dixon welcomed the new regime saying: “Good lawyers will always want to be good law- yers and training is a big part of that. With the personal injury sector going through so many changes, the need for up-to-date training is actually more vital than ever.”
Despite this, 30.9 per cent of our survey respondents felt that there were no advantages to the scheme. One told us: “At ground level, no one really knows what is required which makes the new system a nonsense.
“At least everyone understands what 16 hours is, but under the new system even Solicitors Group cannot agree with MBL Seminars what the requirements are. What chance does everyone else have if even the training providers cannot agree?”
Others said: “it allows practitioners to be less diligent” and “it has caused there to be (generally) a relaxation that is misguided”.
That said, 39.4 per cent said they welcomed the greater personal responsibility it gave them for their own development.
Only 7.5 per cent cited being able to spend less on training as a benefit, suggesting that it is a lack of time or motivation over anything else that is likely to deter solicitors from attending training.
In December the LSB committed to making professional standards a priority in its draft business plan for 2019/20 and this month the SRA confirmed it had been carrying out a review of the CPD system.
The regulator has not confirmed a publication date for its report yet but it is likely to be relatively soon and chief executive Paul Philip hinted that further review of the regime was also likely.
Asked what the regulator had discovered during its review, Philip alluded to results that tally with those of Solicitors Journal’s latest survey.
“Continual professional development is not something we absolved solicitors from doing. What we absolved them from doing is collecting points as a proxy for CPD”, he says.
“And we made it very clear that they have a professional obligation to make sure they’re competent in the areas they’re practising in and that they give some reflection to that on a fairly regular basis.”
However, he admitted the current regime lacked clarity on how solicitors should be recording that obligation. “Where there’s a lacuna”, Philip believes, “is how do you know that they’ve done that? And that’s still a hard nut to crack”.