Training for competency
Tracey Calvert explains why training remains key to mitigating regulatory failings
Training and ensuring regulatory and ethical knowledge is embedded in the internal training programme, should feature on every firm’s agenda. Every compliance professional should add their voice and value to this topic.
Lockdown or not, we must consider training. Do you have the evidence to show that training is on the agenda – and that learning is being delivered to the remote outposts of your firm?
You might need convincing about the merits of training. Training is a compliance safety device. It provides evidence to the Solicitors Regulation Authority (SRA) that the firm is creating an environment in which the culture oozes professionalism, thereby supporting the delivery of legal and ethical services.
It aids individuals in their personal growth as lawyers or, if non-lawyers, as valuable members of your support team working in a regulated industry. It provides the owners and compliance officers with knowledge about colleagues’ capabilities and assurances about expected behaviours.
Where bad behaviour is discovered, the fact that training has been delivered is a useful starting point for the conversations which must follow. Training is essential in all law firms and for all colleagues.
Of course, I would say this. Presenting the number of training sessions which I do – the public and in-house sessions; the one-to-one coaching; and now the lockdown Zoom sessions – it’s inevitable that I will extol its benefits, but it’s true. Effective training is a worthwhile use of the firm’s budget.
We all need time out to learn new skills and to consolidate our learning in other areas. In the lockdown era, training by Zoom or other platforms should continue to be offered to all colleagues.
However, there is more to this discussion than my own personal view. Training supports competency which features heavily in the SRA’s regulatory vocabulary. Interestingly, these words are not defined in the SRA’s glossary, but that may be to enable a broad assessment of an individual’s competency.
The nearest we get to a steer about regulatory expectations is in the statement of solicitor competence and the note that we should look at competency as being “the ability to perform the roles and tasks required by one’s job to the expected standard”.
A lawyer isn’t born competent. They need to acquire skills through training to become competent and remain so. Bear in mind that notwithstanding the crazy times we are working in, solicitors will be asked to confirm their competency during the annual practising certificate renewal exercise in the autumn.
They will be asked to reflect not only on the maintenance of legal knowledge but also skills associated with ethics, professionalism and judgement; technical skills such as the ability to draft well-constructed documents; skills needed to be able to work with other people; and attributes necessary for self-management, such as diary use and time management.
The SRA also expects competency from everyone else working with solicitors. It gives responsibilities to solicitors and also, in authorised law firms, to the owners of these businesses to ensure this happens.
In authorised firms, this individual responsibility is supplemented with the compliance and business system requirements in chapter 2 of the SRA Code Of Conduct For Firms which deals with the need, among other things, for arrangements and systems to ensure compliance with the SRA’s regulatory arrangements and the service and competence standards in chapter 4.
Admittedly, nowhere in the code is there a direct and explicit link between ensuring competency and training; but a connection nevertheless exists and there is a responsibility on law firms to facilitate individual competency through training.
Rite of passage
Some training can best be described as training by osmosis, particularly when considering the competency needs of less experienced lawyers, trainees and apprentice solicitors. As we all know, observing colleagues and how they deal with complicated legal processes, difficult negotiations, awkward client conversations and the management of duties to the courts, for example, is a tried, tested and safe route to individual improvement.
Watching others is a rite of passage. This must not be forgotten when decisions are made about distance working. Effective supervision of remote working must answer the questions not only about the quality of legal services, but also about all the softer skills that must be acquired by a competent lawyer. Perhaps now’s the time to roll out virtual coaching sessions to develop the skills which make a lawyer a good lawyer and ask experienced colleagues to share some of their lessons learned with others.
Compliance with regulatory and legal expectations, and the need for all individuals to demonstrate ethical qualities, is a current risk hot spot. Firm owners and their compliance colleagues must have confidence that all individuals working remotely will be trustworthy brand ambassadors correctly representing themselves, the business and the wider profession – and on the understanding that anything less than the right behaviour has potential regulatory and reputational consequences for them, the firm and for the industry.
Now is not the time to drop the key messages about what it means to work in a regulated industry; why the SRA is interested in all individuals in the industry; and what the SRA and the firm expects from all colleagues.
We all know that training is sometimes a response to statutory duties. Anyone who is subject to the money laundering regulations must deliver regular training to relevant employees. A recent regulatory settlement agreement with a firm which had admitted to delays in training is a case in point.
The published agreement contained a cautionary message to us all when the SRA said “the agreed outcome is a proportionate outcome in the public interest because it creates a credible deterrent to other firms and the issuing of such a sanction signifies the risk to the public, and the legal sector, that arises when employees of a firm may not be adequately trained to detect and prevent money laundering and terrorist financing”.
When did we last roll out anti-money laundering training and how do we now repeat this with remote workers? What other legal knowledge do colleagues need? Here, we are not stopping at training necessary to keep up to speed with developments in the area of law in which we practice (which is a given).
It’s a wider consideration of law that applies because of business needs. Equality, data protection and employment legislation spring to mind as prime training targets bearing in mind the legal, regulatory and reputational consequences of getting these topics wrong.
In other conversations, an understanding of the SRA Standards And Regulations and particular regulatory and ethical expectations should not be assumed. Some colleagues just don’t know what is required, while others might have misunderstood or forgotten the requirements.
Training is the obvious antidote to these failings. My list of essential training topics would extend to those where there’s often a lack of clear understanding: the pervasive nature of the SRA principles; conflicts of interests, confidentiality and disclosure duties; how everyone in the firm has duties to protect client money and comply with the SRA accounts rules; duties to the courts and others; notification and reporting duties; and the meaning of effective supervision and how to achieve this.
An in-house, tailored training programme is a necessity of modern practice. A well considered plan will deliver essential knowledge with the firm’s internal expectations and solutions; and provide evidence to manage any concerns about the safety of remotely delivered legal services.