The continuing competence regime has now been compulsory for just over two months. Diana Bentley talks to the regulator, firms and industry experts about how the change is being implemented in practice
While firms struggle with the possible outcomes of the Brexit vote, this year’s latest regulatory challenge has been the introduction by the Solicitors Regulation Authority (SRA) of a new mandatory scheme on continuing competence (CC). Consigned to history is the system of requiring a minimum of 16 hours of continuing professional development (CPD) training annually to ensure solicitors maintain their technical and practical know-how. Instead, as of 1 November 2016, all solicitors and firms must have adopted the new regime, under which solicitors must focus more broadly on maintaining their competence to practise.
At the heart of the new approach lies principle 5 of the SRA Handbook, which requires solicitors to provide a proper standard of service to clients; an integral part of meeting this requirement is meeting the competencies set out in the SRA’s competence statement (www.sra.org.uk/solicitors/competence-statement.page). In something of a seismic shift, solicitors are now charged with reflecting on the quality of their practice and being responsible for their own training needs, to satisfy themselves that they can fulfill principle 5. The process must be recorded, and solicitors must make a declaration that they have reflected on their practice and addressed any learning and development needs, in order to renew their practising certificate.
The notion behind the new regime is straightforward, explains Richard Williams, policy associate in the SRA’s regulation and education team. ‘The SRA felt the hours-based CPD regime didn’t encourage the right learning and development behaviour, and wasn’t well targeted. It focused on compliance with an arbitrary number of hours’ training, rather than on requiring solicitors to think about what they needed to do to deliver a proper standard of service. We want solicitors to think hard about how they achieve this.’
Unlike some new regulatory regimes, the scheme is being widely embraced. Many firms voluntarily adopted the new regime after 1 April 2015, says Williams. ‘Of the 1,000 firms which responded to our survey in the spring of 2016, around 50 per cent had already made the transition. Most said they wanted to take advantage early of what they saw as the benefits of the new regime.’
Jane Hamshaw, learning and development advisor of Ashtons Legal, which has offices throughout East Anglia, welcomes the change. ‘The CPD system was focused on a number of training events, not on development opportunities and what people were gaining from training, which is a different mindset. It meant people didn’t necessarily learn as they were going along. This new system is a leap in thinking, and a definite step in the right direction. It will make people more aware of what they’re learning.’
At Sherrards Solicitors, which has offices in London and St Albans, partner Joanne Perry and compliance officer Samantha Orsborne are also enthusiastic. ‘The old regime was prescriptive and onerous. Now we’ll have much more flexibility, and solicitors can take ownership of their development,’ notes Orsborne. Perry concurs. ‘It’s outcome- and results-focused. It gives us a framework around which to plan our training and make it more meaningful. We see this new regime as a positive that will support our learning and development processes.’
So how are firms giving effect to the new regime? In an SRA survey in spring 2016, about one-third of firms said that they were going to integrate the new requirements into their appraisal process. Many firms also have competency frameworks to which the SRA competency requirements can be added. At Sherrards, the new requirements will be built into the firm’s mid- and end-of-year individual performance reviews for solicitors, and the templates in the SRA continuing competence toolkit (www.sra.org.uk/solicitors/cpd/tool-kit/continuing-competence-toolkit.page) will be used in the process. ‘All solicitors must input details of their learning and development online on our HR system, so it’s up to date for their reviews, and especially for the mid-year review; we don’t want things left until the end of the year,’ says Perry.
Perry and Orsborne explain that Sherrards’ heads will establish suitable development plans for their solicitors. Externally-run courses will still be used for the CC regime, but courses are also run in-house, on both legal subjects and management and interpersonal skills. ‘We do a range of things,’ notes Perry. ‘Larger departments may run lunchtime lectures. Smaller ones may use webinars, for instance. We do training on compliance, so solicitors understand the SRA Code of Conduct and the SRA’s requirements. We do things on client care and on money laundering online, through one of the big providers.’
The firm is clear about the respective responsibilities under the regime. ‘We do a bulk renewal of our solicitors’ practising certificates, although the solicitors all have to make their own declaration, so they must take responsibility for their own learning and development. But we must ensure that we provide opportunities for them and make it easier for them,’ Perry explains. ‘We want to make this a positive part of our employee engagement process, so people see we’re investing in them, and we become an employer of choice.’
Ashtons will taking a similar approach – continuing to use external training courses, but with a broader in-house offering, too. In the last few years, the firm has developed its own in-house courses and may do more in future, says Hamshaw. ‘We want to ensure that our people’s knowledge of the law is kept up to date and people are doing more of these courses online. But we’re focusing too on training on skills, like managing people, leadership, presentation and assertiveness. Under the new scheme, solicitors will also be able to include a wider array of learning, like reading articles, which can be recorded as part of their learning regime. So the training will be broader.’
The competencies required for each role are set out by the firm, and discussed at each individual’s annual review. This sits alongside the record of training, which Hamshaw oversees. The firm is also in the process of adopting an online system within which solicitors can view these records and add to them, she reports. ‘We consider training needs for the individual in our annual reviews, and that will continue. But people now must reflect on their learning and what they’ve gained from it. They have to ask themselves: what did I do, what did I learn, and what will I do with it?’
Rachel Brushfield, a career, learning and development strategist and coach at EnergiseLegal, emphasises the importance of the individual devoting time and energy to thinking about learning. She suggests that firms specify a particular time during which lawyers should focus on their learning needs. ‘Once a week or month, lawyers could undertake what the new regime expects, by reflecting on what has been happening in their practice, evaluating it, planning what training they need, and recording it.’ Brushfield calls this approach ‘self-coaching’. For busy fee-earners, it is hard to make this a priority, she admits, adding that reflection often feels self-indulgent to lawyers. But self-coaching is a simple, no-cost, reflective technique, which, if taught, would not only support lawyers in implementing the change, but also help them in other areas of their lives and work, she insists.
Meanwhile, the SRA and the Law Society are providing support to help firms meet the new requirements. In addition to the competence statement, the SRA has produced a toolkit including template forms, and information on how to implement and manage the system. The Law Society has launched the Professional Development Centre (PDC), a new, enhanced e-learning portal which replaces the CPD Centre (www.lawsociety.org.uk/pdc). ‘The PDC has been designed to help our members comply with the SRA continuing competence requirements, while managing their own ongoing learning and development,’ says PDC manager Helen Donegan. Users will be able to capture all their learning, including external training, in one free, online record. ‘It also allows them to assess themselves against the SRA competence statement, create their own personal development plans, and receive training suggestions tailored to their individual areas of interest and competence needs,’ Donegan explains.
New compact e-learning courses – termed ‘smart-sized’ courses – have been developed, too. ‘These are available free through the PDC, and are ideal for integrating quick, bite-sized learning into busy schedules, as our members tell us that time constraints are a major challenge when it comes to training,’ remarks Donegan. New formats of content will continue to be developed. Some FAQs have also been produced to help solicitors with the transition.
While the new regime may be a liberation, practitioners appreciate that some pitfalls are involved, chief among them getting some solicitors to consider what they must do to deliver a proper standard of service. Perry and Orsborne fear that some solicitors, freed of the old hours-based system, may have to be persuaded to continue learning. ‘Newly qualified solicitors will accept more readily that they have more to learn, and will appreciate the benefits. More established solicitors may feel they have less need for training, and will need to see that they must lead by example. This could be discussed in department meetings,’ suggests Perry. Hamshaw agrees. ‘The extreme danger is that some people will think they don’t have to do anything at all. But they must remember that at the end of the year, they have to sign a declaration. Here, we’re telling people what they have to do, team by team.’
Nicola Jones, co-founder and director of Athena Professional, reports that some firms are still using CPD hours as a minimum standard, which she feels is misguided. ‘Hours are no longer an indication of competence. Using them as a baseline may work as a transitional approach, but it needs to be part of a strategy to move to a competence approach.’
Other pitfalls are deeper, she warns. There is a risk around the joint responsibility of solicitors and firms: both may rely on the other, so nothing gets done, and an individual could even just invent something and record it. There are challenges in terms of moving away from what she calls the ‘didactic’ CPD approach, and towards making choices about appropriate learning. And this may be made more difficult by the lack of experience in learning and development in the legal sector. ‘It’s the irony of a highly educated sector. It’s essential to success in business, but lawyers tend to assume that HR managers know about learning and development, and that’s often not the case.’
Even more fundamental, she says, is whether lawyers will take seriously the need to actually put their learning into practice. As lawyers tend to have an academic experience of learning and are intellectually quick, they may only action their learning when it covers legal technical matters that the individual recognises will give them a competitive advantage.
Solicitors and firms, bound to make a declaration too, may now be considering what penalties may apply if the regime is not properly implemented. A complaint about a solicitor or practice may prompt an investigation into evidence of learning and be part of a conduct issue. Random checks on the use of the system could be costly for the SRA, notes Williams, but it will still be watching. ‘We take ongoing competence very seriously,’ he stresses. ‘We must ensure that solicitors meet high standards, and this isn’t just about ticking a box, but about all solicitors meeting their professional obligation to provide a proper standard of service. If we think there’s a competence issue with an individual or firm, what they’ve done – or not – on this, could be serious. A failure to meet proper practising standards could be picked up by us or the Legal Ombudsman. If we find common themes in complaints, and a picture of a problem emerges, we may decide to engage with an individual or firm – we’ll then be looking at the evidence of how learning and development needs have been addressed.’ The regulator may also consider examining the implementation of the continuing competence regime as part of a study of a whole practice area.
Whatever the challenges involved in adopting the new regime, its potential benefits may be considerable. Hamshaw says it will be more effective and beneficial to individuals and firms, because of its emphasis on developing people. ‘It’s exciting. It’s widened the scope of the possibilities of training and development in this sector, and will open people’s minds to skills training.’
Williams stresses the freedom and flexibility the new regime will offer firms. ‘They can tailor learning and development programmes to suit their business needs, and solicitors can tailor their learning to help them with their specific roles. There could also be some cost savings for firms: they can work on what training roles and functions require, and develop relevant training, which should help them get more value for money… It should also be a more robust system overall.‘
But the change could also be of significant benefit to law firms in terms of future-proofing themselves in a changing market, says Jones. ‘Being able to provide services in new ways, lead a team and manage performance effectively are the skills that are arguably becoming as important as technical skills in the legal sector,’ she comments. ‘We hear constantly that technical competence is a given, and management and leadership skills are at a premium. Historically, though, this isn’t something the legal sector has engaged with. Firms must identify what the individual needs to be able to succeed in the new ways of working in the sector, and they must support that through their planning for training and development for that individual. The commercial world has been dealing with these issues for some time, and no regulatory body tells businesses how to approach learning. This is an opportunity for lawyers to understand the same challenges, demonstrate best practice, and show clients that they’re up to date.’ CC, Jones says, presents a significant opportunity for firms to align learning with their business strategies, and drive their business forward.