Four months into continuing competence, some firms are introducing draconian, bureaucratic processes to comply under the new regime. And that means they are unnecessarily making a rod for their own back, says Melissa Hardee.
I am often asked by firms what they should they be doing to comply with continuing competence, and whether what they're doing already is right. My question in return is: are you doing anything differently, and why?
Lawyers tend to feel uncomfortable without rules and regulations to follow, and so, when the CPD regulations were repealed on 31 October 2016 and not replaced, many looked to the Solicitors Regulation Authority's continuing competence toolkit to fill what they saw as a regulatory void. But the toolkit is not a replacement: it is non-mandatory guidance only. If you've used the toolkit as your starting point, you may have made unnecessary work for yourself and your solicitors, and imposed unnecessary and burdensome bureaucracy. Do you now require, say, implemented quarterly reflections recorded in a prescribed format, or weekly recording of all activities that meet learning and development needs, or something similar?
What solicitors have, since the change on 1 November, is actually the same obligation they have always had: the obligation under principle 5 of the SRA Handbook to provide a proper standard of service to their clients. If firms were able to comply with principle 5 before 1 November, 2016, the removal of a requirement to do 16 hours of CPD a year should not have changed this.
Yes, the new declaration solicitors have to make to renew their practising certificate does say 'I have reflected on my practice and addressed any identified learning and development needs'. But that is all it says. How and when a solicitor reflects, and how and when they identify and address learning and development needs, is not prescribed. In fact, the SRA has gone to great lengths to stress that it is for the individual solicitor to determine. 'Continuing competence' is not actually a defined term – it is a term of art, a concept, a short-hand way of describing the responsibility solicitors bear individually under principle 5.
Let me use an analogy to explain what I mean. For years, I entered the cake-baking competition in my village show. Sometimes I would be given the recipe I had to use to make the cake; at other times, I wasn't given a recipe but could use whatever recipe I liked, provided that I produced a cake that met the specified judging standards for the show. It's the same with 'continuing competence': previously, the CPD regulations were the 'recipe' solicitors had to follow to ensure they were competent (though it is questionable whether 16 hours of CPD of any sort of itself ensured competence); from 1 November, 2016, however, solicitors are able to use whatever 'recipe' they want, provided that the 'recipe' achieves the required standards of competence – namely, the competencies in the SRA's competence statement, and a proper standard of service to their clients.
Rather than scrabbling around madly for new 'recipes', step back and consider what 'recipes' you already use in your firm that ensure your solicitors are – and remain – competent. Do you have, for instance, an appraisal process with pre-appraisal preparation; current awareness briefings or regular team meetings; personal development plans; post-transaction file reviews; training programmes for trainees / junior lawyers / senior lawyers / partners? Of course, some of the recipes might benefit from improvements – and now is also the time to think about that – but the reality is this: there is probably not much you need to do differently in order to ensure that your solicitors comply with Principle 5.
The Law Society's Professional Development Centre can help you create a personal development plan, capture all your learning in one place and record and assess yourself against the SRA competence statement. Sign up to our eLearning portal