Live and learn

For some lawyers, 31 October 2014 will mark the end of their last hours-based CPD year. From February 2015, it will be possible to move to the new regulatory model, whereby firms and individuals make a declaration of competence to practise when applying for their practising certificates. From November 2016, that approach will be mandatory.

There are excellent business reasons why a robust approach to individual and organisational performance should involve more than just metrics, whether CPD hours or monthly budgets

The details of the change are as yet unclear; the Solicitors Regulation Authority (SRA) has promised that a “competency framework” will be published for consultation in autumn 2014, but this had not yet been released as this magazine went to press. Full guidance on how to evidence compliance is expected in February 2015. What we do know is that removing the comfort blanket of CPD hours will make firms reassess the business purpose of learning. Some may drop it like a stone. Others will see an opportunity to take a new approach to training and ensure that professional development serves their business needs.

The rationale for change

Changes to CPD regulation are part of the SRA’s “Training 4 Tomorrow” agenda, and were informed by the findings of the Legal Education Training Review (LETR). Law firms were surveyed on their views of how CPD was working and should work in the future. The SRA also took written submissions and ran consultation meetings across the country on CPD reform, in late 2013 and early 2014.

The main concerns raised about CPD provision by the LETR were the relevance and quality of existing CPD provision, in particular the phenomenon of individuals turning up for irrelevant training sessions, just to get the hours. Based on the LETR recommendations, the SRA put forward three options for consultation: fewer hours; mandatory reflective learning; or an outcomes-focused approach in which firms and individuals share responsibility for achieving “competence to practise”. As you know, the third option was the one eventually chosen, as announced by the SRA in May this year.

The business case for change

Any change this big will leave many firms wondering what’s in it for them, and whether the administrative burden of the change will outweigh the potential benefits envisaged by the regulators. But this change could bring very real benefits for firms.

First, sustainable growth can only come from a strong internal base of well-managed, high-performing individuals; otherwise, there is an ever-present risk of failure to deliver consistently, or at all. Second, market pressures and the ever-accelerating pace of technological development make the ability to change an imperative. Adaptable people working in agile organisations will be more likely to survive and thrive.

Finally, law firms will need to be creative about the way they deliver services. An organisation which values people who are willing to be creative must embrace the attendant risks and be able to manage and mitigate failure. That can only be achieved in an atmosphere of openness, dialogue and commitment to constant improvement. Creating that kind of culture requires a genuine commitment to skills training as well as technical expertise.

Being released from the need to clock up CPD hours in order to comply with regulations will enable firms to use professional development to rise to these challenges.

Managing the transition to the new regime also has the potential to bring positive change. Building an understanding of the purpose of learning will help ensure it is relevant to business strategy and contributes to business need. And setting up the competencies needed to assess competence to practise will contribute to your performance management systems and enhance performance.

November 2016, when the change comes into force, may seem reasonably far off, but two years isn’t long for firms wanting to take full advantage of the opportunities. Below are some tips for firms wanting to improve the quality and impact of learning, for their people and their business.

1. Take a strategic view

A good learning strategy defines the purpose of learning for the business; it is, by definition, ‘outcomes-focused’. Developing or reviewing learning strategy will provide evidence of a proactive approach to ensuring competence at an organisational level. It is also the first step in working out how to plan and prioritise training and measure return on investment for any learning initiative.

2. Use competencies

Although we do not yet have the SRA’s ‘competency framework’, competencies are widely used across business and commerce. Put simply, competencies describe ‘what good looks like’. For example, it might be thought desirable for a lawyer to possess intellectual flexibility and technical knowledge. A competency-based approach would put some detail behind that statement to describe the desired behaviours, such as:

• demonstrates intellectual curiosity in a variety of ways;
• shares relevant information with colleagues across departments;
• quickly and accurately grasps key issues in any legal problem; and
• reflects and develops own thinking.

For some law firms, this kind of approach is well established. For others, however, it opens a Pandora’s box of issues, including accountability for behaviour as well as financial output, ruffling the feathers of established expertise by shifting the focus to performance management.

Mark Briegal, a partner at Aaron & Partners, ran a highly successful learning and development business before moving into the law; he describes the competency-based approach as a “no-brainer” in the legal sector, since “performance is not just about legal knowledge; it’s about competencies as well”. He describes competencies as fundamental to performance management: “If you cannot describe the behaviour you want to encourage, how can you begin to assess development needs?”

Providing evidence of competence under the new CPD regime will throw a spotlight on the performance management process. Many lawyers who are required to manage appraisals are too busy or lack the skills to make them really effective. Yet giving individuals the opportunity to think purposefully about their development needs is an important starting point in the process of determining “competence”. Setting people up for success under the new CPD regime will mean getting to grips with performance management and making it work well.

3. Capture learning in the workplace

People learn most by doing their jobs, day-to-day. Arguably, lawyers do this more than most, as the law changes constantly. But often, little is invested in maximising the opportunities to capture learning at work.

CILEx has already moved to an outcomes-based approach to CPD, which enables its members to capture a wide range of learning activities as CPD hours. Barbara Hamilton-Bruce, COO at Accident Advice Helpline and a council member at CILEx, has just completed her first learning log under the new process, and says “it made me think about my learning and, probably more importantly, about where I was unconsciously learning through the tasks that I was completing”.

The new approach to CPD should allow lawyers to utilise work-based learning (WBL) principles. Instead of losing the learning value of work activities in the noise and pressure of daily life, WBL takes a structured approach, outlined below.

1. Identifying learning opportunities, such as making a presentation to a client or senior partners.
2. Recording the challenges faced and what it is hoped will be learned from the experience (thereby allowing the learner to set their own learning outcomes).
3. Once the task is completed, recording reflections on what was learned and identifying ways to build on the experience to further improve knowledge and skills.

There is significant scope for producing evidence of the application of professional ethics in this way – for example, by using WBL principles to learn from a forthcoming negotiation, transaction or proposal.

4. Harness technology

Learning technology will become key, offering both innovative learning opportunities, and tools for tracking and evidencing learning. It may come as a surprise to find that the number one online learning tool in 2014 was Twitter (see Jane Hart’s survey), because it provides a way to tap into a huge range of expertise and the chance to interact with other people with similar learning interests. All kinds of online learning can be translated into recognisable units of activity, and captured through platforms such as the Learning Locker.

It will be possible for individual lawyers to evidence their learning, for example, by using a training record. There is no reason in principle why that should not be in pen and ink, or individuals could use an online record such as the one provided by the Law Society’s CPD Centre. The opportunities for capturing a range of learning activity, as well as the benefits of having a centralised way of tracking learning in the firm, will also make a centralised, and also potentially online, recording system attractive.

5. Focus on quality

The SRA will cease to accredit CPD providers from 1 November 2014. This throws the onus onto firms to be discerning about investing in training which delivers real impact. It may be tempting to replace CPD hours with courses which are accredited by a university or professional body, and that may offer a good return on investment. However, firms with a clear understanding of the learning process will be able to provide the motivation, resources and support for individuals to progress their own professional development in a wide range of ways.

The intention of CPD reform is a move away from rigid measures of learning, towards a focus on the quality of learning and the potential to change behaviour as a result of training.

The wider context

There are excellent business reasons why a robust approach to individual and organisational performance should involve more than just metrics, whether CPD hours or monthly budgets. If the move to an outcome-focused approach to CPD brings that into focus, then I for one count it as a blessing.