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Solicitors Regulation Authority (SRA) Continuing Competence – are you ready for the new CPD regime?

Are you ready for the new CPD regime?

This bulletin will look at the new Continuing Professional Development (CPD) regime being introduced by the Solicitors Regulation Authority (SRA) this year and how it will impact on practitioners and their firms.

According to statistics published by the SRA, at the end of December 2015, there were around 172, 000 solicitors on the Roll and around 132,000 with practising certificates. Around 95,000 of those are in private practice with most of the remainder working in-house. The SRA has the delegated powers from the Law Society to regulate the profession and the solicitors working within it.

The current requirements for CPD, have been around a quarter of a century so the latest scheme being introduced this year is an evolution, or some might say revolution, of that system whilst embracing more of the spirit of outcomes-focused regulation (OFR). The CPD requirements with which we are all currently familiar are based on hours-based training.

There is no point in going into the detail of the scheme here as it’s being replaced this year. However, currently, qualified solicitors are required to undertake the equivalent of 16 hours CPD each year. Those solicitors who work part time are required to undertake one hours’ CPD for every two hours worked per week. For newly-qualified solicitors, until April 2015, there was a requirement to attend Management Course Stage 1.

This is no longer a requirement. The CPD year has run from 1 November to 31 October each year. For those ‘qualified to supervise’ in a law firm, typically a partner or equivalent, there remains the requirement under Rule 12 of the SRA Practice Framework Rules to undertake a minimum of 12 hours of management training.

This is all about to change. You may have chosen to adopt the new scheme already whilst it has been voluntary. For the rest, it becomes mandatory from 1 November this year.

Why the need for change?

Following consultation, the SRA decided that it was time for change and published its intentions regarding a new scheme towards the end of 2014. The reasons for change are summarised in four main points below:
  • Firstly, an hours based requirement is no guarantee of competence
  • Second, the current scheme has resulted in the wrong sort of learning and development being undertaken based on compliance rather that competence, the compliance in question being the ticking of a box to confirm that 16 hours CPD has been undertaken
  • Third, the blanket application of the scheme has shown that one size does not fit all and that flexibility was required
  • Finally, a change provides an opportunity to adopt a new approach to learning and development. It’s difficult to argue with the logic here but was the 16 hours based system broken?

    To answer that we need to know whether all CPD undertaken by solicitors has been relevant and effective. In any event, I don’t think we will see in the future, as much of the the mad rush in October by solicitors clamouring to clock up their 16 hours!

Benefits of the changes?

The intended benefits of the new scheme as stated by the SRA are: improved clarity on what is meant by competence; flexibility on how competence is achieved and finally, the reduction of the regulatory burden on solicitors. Whether these are achieved or not, remains to be seen, but for many, success is going to mean a cultural change in how the whole issue of competence is addressed.

The SRA and others

The new scheme is underpinned by the ten principles in the SRA Handbook and in particular number five which says that: “[Solicitors must] provide a proper standard of service”. Further in the SRA Code of Conduct at Chapter 7, Outcome O [7.6], we’re reminded that the managers in law firms have a responsibility to “train individuals working in the firm to maintain a level of competence appropriate to their work and level of responsibility”.

Having spoken to a number of indemnity insurance brokers in recent times, it has become apparent that underwriters are taking notice of the new scheme and will be looking for assurances, amongst existing and potential new clients, on how training (now read ’learning & development’) is being measured. So, the underwriters are now also outcomes focused!

The SRA has made the point strongly that the new scheme is definitely not a soft option, a statement aimed perhaps at those whose response on hearing the news was that they no longer have to do CPD!

The scheme does mean increased flexibility, for example CPD accredited courses and providers are a thing of the past. You are free to choose what is best for you and your personal needs. Interestingly, in a recent Law Society survey on the new scheme, 74% of those who took part said that they will do the same as before whereas 6% said they would do less.

There may be some comfort, if it were needed, in knowing that the other frontline regulators are moving in the same direction. For Legal Executives, CILEX has moved to a competency-based framework that requires 9 ‘activities’ per year.

The Bar Standards Council is consulting on removing the 12 hours CPD requirement for 0-3 year practising barristers. The Council of Licensed Conveyancers is currently still using an hours-based CPD scheme.

So, what is this all about?

The SRA website is helpful in gaining an appreciation of what the new scheme is about and how it will work in practice. There are downloadable documents and webinars on various topics. There are three parts to the scheme. The starting point is the document: “Statement of Solicitor Competence”. Second is the “Threshold Statement” and finally, the “Statement of Legal Knowledge”.

The Statement of Solicitor Competence is the SRA’s statement of what makes a competent solicitor and lists under four headings what a solicitor should be able to do:
  • A. Ethics, professionalism and judgement
  • B. Technical legal practice
  • C. Working with other people
  • D. Managing themselves and their own work

Each of these headings is split into subheadings, each with a number of points that all together provide a comprehensive picture of the competent solicitor. This is all very generic so the second document in the pack is the threshold standard. This provides criteria for different levels of competence and allows solicitors to assess their competence on a scale of 1-5.

Level three is the level required of a solicitor at the point of qualification. The third part of the set is the Statement of Legal Knowledge that breaks down legal knowledge into the expectations within different areas of the practice (law). All three of these documents can be downloaded from the SRA website.

Ensuring compliance

It’s highly likely that in order to ensure competence, solicitors will need to undertake regular learning and development. They will need to reflect on their own practice and plan for fulfilling any needs that they have. At the end of the year solicitors will be required to declare that they are competent to fulfil their role as a solicitor.

At this point we should remember Outcome 7.6 in the code which says that “Employers are responsible for the delivery of a proper standard of service and for training staff to maintain competence”.

Reflection

Reflection means stepping back to consider how you are doing, what you are doing well, what you could do better and so on. This could relate to your legal knowledge and practices or your soft skills (e.g. management & client care). Will this be the main area of change for solicitors involving an honest personal reflection and an investment of precious time to ensure this part of the process is effective?

Plan, Act & Evaluation

It may be difficult to separate the processes involved here. The outcome from the reflection process should be the identification of personal learning and development needs which will form the beginning of a plan of action. The plan should identify the actions that will be taken to satisfy particular needs over the coming year.

This will probably be more than a traditional training plan as solicitors will need to invest more thought into how best to satisfy their needs and then evaluate activities afterwards to assess whether their learning and development needs have been satisfied.

Action must be taken to ensure the plan is carried out and more importantly, learning and development outcomes are achieved. The evaluation may be part of an annual performance review or appraisal. Evaluation should be undertaken after every event or action and then an annual review carried out as part of the reflection for next year.

How can I satisfy my learning and development needs?

With flexibility comes more options beyond attending a training course. We’re no longer tied to attending a CPD accredited course for part of our CPD. Now we decide how best to satisfy a need and that may be a combination of external and internal resources e.g. a public course or an internal coaching session.

There are many resources available online along with more traditional reading and research. Flexibility also complicates matters as the evaluation part of the process becomes more valuable in deciding how effective any chosen resource has been, in satisfying a particular learning and development need.

Does all of this mean I will need to keep more records?

Yes, it does. You will need evidence to support your annual declaration that you are competent to perform as a solicitor. The learning and development plan will provide the details of what you intend to do in order to meet your needs. You will also need records of what you actually did and the results of your evaluation of its effectiveness.

Of course, no matter how good we think we are, there can never be a blank learning and development plan because there is always the issue of keeping up to date with changes! The plan is a key document here because it should not only record the need and the resource used to address that need but also record the evaluation and where the evidence is found of the activity and outcome.

The author recently presented a seminar on this subject and during group discussions found that the main concern amongst the delegates was the level of record keeping that is going to be required. Generally, they felt they were doing the right things and they would be able to make the annual declaration of competence but were unsure whether they would be able to provide sufficient evidence to support their declaration if challenged to do so.

Monitoring & enforcement

The SRA has said that it will monitor compliance with the new scheme by calling for evidence when there are concerns about the competence of an individual or firm. Their first port of call is likely to be the Compliance Officers for Legal Practice (COLP) who has the responsibility of ensuring compliance with the CPD requirements.

Those ‘concerns’ could be raised in a number of ways and they are not new: complaints or claims, adverse publicity and whistleblowing being the main ones. The Annual Declaration will be made through the completion of the Practising Certificate Renewal Exercise (PCRE) form.

Will systems and accreditations be helpful for compliance?

Generally, discussions amongst those who have gone down the systems and quality standard routes (Lexcel, Investors in People and so on) would suggest that they are more comfortable with the new scheme due to the systems and recording procedures they must have in place, in order to maintain their accreditations. However, for all firms, they will almost certainly need to look at the effectiveness of their supervision and appraisal procedures and ensure that they embrace the new CPD cycle for all of their staff and not just those who have needed CPD hours.

And finally…

For many firms, they will feel they already have in place the culture and systems to cope with the new Continuing Competence requirements. For others, they will have some work to do. In any event, learning and development activity should not be limited to the needs of the individual but should be joined up with the strategic objectives of the firm. The value of any learning and development activity works on two levels, the value to the individual and the value to the business.

The content of this bulletin is intended for general information only and is not to be taken as advice. No liability is accepted for consequences of any sort however arising as a result of any action taken or not taken as a result of the content of this bulletin.

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