Solicitor Ongoing Competence

Following the Legal Service Board’s (LSB) “Statement of policy – ongoing competence” there had been some speculation that the Solicitors Regulation Authority (SRA) might feel itself obliged to return to a system whereby solicitors needed to demonstrate that they had undertaken a certain set amount of training or CPD hours or acquired sufficient CPD points.  Many will be relieved that, in its recent “Response to LSB Statement of Policy – ongoing competence“, the SRA has not done so and has instead announced a series of actions that it will be taking to address the outcomes identified by the LSB.

LSB Policy Statement

In July 2022, the LSB published its statement of policy which set clear outcomes for legal services regulators to meet in terms of ongoing competence, to ensure that lawyers possessed the necessary skills, knowledge and behaviours to enable them to provide good quality legal services.

The statement went to require that legal regulators set standards of ongoing competence, achieve a better understanding of lawyers’ competence, and set new measures to ensure standards are maintained. Fortunately it left a degree of flexible for the regulators to implement the requirements across their regulated communities in the manner that they saw fir, provided that the objectives were achieved.

Driven by their apparent obsession that consumer outcomes in the legal sector need to be improved in order to protect consumers from harm and to build public trust and confidence in the legal sector, the LSB outlined four key outcomes that regulators needed to pursue.  These were:

• Set the standards of competence that authorised persons should meet at the point of authorisation and throughout their careers.
• Regularly determine the levels of competence within the profession(s) they regulate, and identify areas where competence may need to be improved.
• Make appropriate interventions to ensure standards of competence are maintained across the profession(s) they regulate.
• Take suitable remedial action when standards of competence are not met by individual authorised persons.

and that in pursuing the outcomes, “regulators should have regard to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed”.

Notwithstanding the ongoing competence  standards imposed by most, if not all, of the regulators, the LSB took the view that “there were very few routine or formal measures to ensure lawyers kept their knowledge up-to-date while practising. This is out of step with public expectations and with approaches taken in other professions”.

They went on to cite consumer research which apparently demonstrated that there was a gap between what the public expects regarding lawyers’ competence and the current checks in place.  This revealed that:

• 95% of people believe lawyers should have to demonstrate they remain competent throughout their careers.
• When informed about current arrangements, almost nine in ten people (87%) think legal services regulators should do more to reduce the risk of a lack of competence undermining public trust in the legal system.

In particular, the LSB felt that regulators needed to be alert to risks to the public and consumers, especially where the consequences of competence issues would be severe, consumers are in vulnerable circumstances or there was the likelihood of harm to the public from competence issues.

The LSB expected regulators to take the necessary steps to demonstrate that expectations had been met and to demonstrate that evidence-based decisions had been taken to determine what measures were appropriate to implement for those whom that regulator regulated.

The SRA Response

Following this report, the SRA have now come back with a measured, and in most respects practical response indicating how it will achieve the aims going forward. In the main part, these are not substantially different from the steps that it currently takes with perhaps a little more emphasis on enforcement, which is they key takeaway from this exercise for those firms who do regard competency training as an optional extra that is usually ignored.

The SRA’s progress report and action plan was published at the end of January 2023 and in it the SRA said that it would “develop and broaden the ways that we identify solicitors who are not competent. We will take enforcement action, where necessary, to protect consumers and in line with the LSB’s expectations. Our activities mean that we will meet the LSB’s outcomes in full, and continue to meet those outcomes, by 31 January 2024”.  The SRA indicated that it would “take a risk-based approach in the activities we undertake to secure competence, placing a particular focus on the competence of solicitors who advise and represent vulnerable consumers. We are also sensitive to the importance of consumers having access to advice and representation and so our interventions are proportionate.”

To address the four key areas outlined in the LSB report, the SRA stated that it had and will continue to:

• set the standards of competence that those it regulates should meet, both at authorisation and beyond in its Statement of Solicitor Competence. This meets outcome A.
• collect evidence and identify areas where competence may need to be improved and respond in a targeted way through its proactive regulatory work, meeting outcome B.
• make interventions where it has concerns about standards of competence across the profession, or in specific areas, meeting outcome C.
• respond to individual cases of incompetence on a case-by-case basis by considering the seriousness of the case and any mitigating and aggravating factors, meeting outcome D. It will take remedial and enforcement action, such as to require training or enhanced supervision, where it is appropriate to do so.

How it will meet those targets has also been specified.  The SRA has stated that it will:

• Measure the impact of its Statement of Solicitor Competence through a 10 year evaluation programme for the SQE.  The Statement is made up of three competence parts:
  • a “statement of solicitor competence” which sets out what solicitors need to be able to do to perform their role effectively. It provides everyone with a clear indication of what they can expect from their solicitor. Aspiring solicitors are tested against this by the SQE,
  • a “threshold standard” which sets out the level at which the competences in the competence statement should be performed upon qualification as a solicitor, and
  • a “statement of legal knowledge” which sets out the knowledge that solicitors are required demonstrate at the point of qualification and which covers not only the legal areas such as business law, contract, tort, property law, wills and probate and criminal law and practice buit also more general issues such as accounts, ethics and professional conduct.
• Continue to build its resources to help those whom it regulates to understand its approach and the key risks in relation to maintaining ongoing competence. It will do this by creating:
  • • new best practice examples of how different types of solicitor and firm meet their obligations
    • regulatory case studies showing how and when we take enforcement action for incompetence.
• Undertake research to understand the impact of its targeted competence resources.
• Publish annually its determination of competence across those whom it regulates in order to identify the most significant risks around competence.
• Take forward thematic reviews to both target areas where competence is an identified risk and uncover other competence-related risks which it will need to address.
• Begin a review of its annual competence declaration, using the findings of its research and thematic reviews.
• Continue to review training records, focusing on high-risk areas that it has already identified (for example, immigration advice and services).
• Look at where it needs to respond to any areas of risk or concern that its annual assessment identifies.
• Refresh its guidance to staff to further support them to identify ongoing competence issues. This will include when to initiate appropriate remedial action and when this should lead to enforcement action.
• Enhance its approach to following up on competence reports which do not meet its threshold for enforcement but where it would expect to see improvement.
• Pilot a proactive, risk-based approach to identifying and following up with firms, where its data and information shows they may not be meeting the required competence standards.

The Practical Implications of Ongoing Competence for Firms

So, what does this mean in practice for solicitors’ firms?

In broad terms it means that all firms must take continuing competence seriously and not simply pay lip-service in the hope that raining records will not be looked at in any detail.  Whilst many firms do take ongoing competence seriously, there are still some who do not and many where often those in the most senior positions use pressure of work or depth of knowledge as a reason not to keep up to date.

The SRA expect that everyone in a solicitors’ practice will carry out the five continuing competence steps, at least annually, of:

• Reflect – regularly consider the quality of their practice.
• Identify – through reflection, identify their learning and development needs.
• Plan and address – regularly update a plan on how they’ll address their learning and development needs.
• Record – keep an up-to-date record of their learning and development activity.
• Evaluate – think about the effectiveness of their learning and development.

This is an entirely different exercise from that of realising that a practising certificate application needs to be made, that a statement as to training undertaken needs to be made and then quickly taking whatever courses might be available in order to back up that statement.  This latter approach is even one that appears to be condoned by several of the law firm training organisations who are not averse to promoting the made scramble for pre-application “CPD” training.

The SRA has started its thematic visits to those firms whom it perceives to be most likely to put at risk vulnerable clients and will continue to do so.  Any firm that is unable to demonstrate that its personnel are adequately trained could find itself in breach of the SRA Codes and thus open to some of the newly increased penalties that the SRA is now able to impose.  That means requiring that all personnel – from the senior partner downwards – undertakes whatever training is deemed to be appropriate, is able to demonstrate why that particular is deemed appropriate, what the training has achieved for that person’s ability to provide services to clients AND, most importantly, keep appropriate records.

Those who are subscribers to the Infolegal InfoHub care able, not only to undertake online courses through the InfoHub, but to record training on the InfoHub on an individual by individual basis and so could use those records to demonstrate compliance to the SRA.  For more information on the train ing available through Infolegal, contact Duncan Finlyson (duncanfinlyson@infolegal.co.uk) .