Should Solicitors Have Competence Checks?

Back in November 2016, the Solicitors Regulation Authority (SRA) removed the requirement for solicitors to count CPD hours and replaced this with a self-regulatory requirement for legal professionals. They advised legal practitioners to “reflect on the quality of your practice and identify any learning and development needs. You can then address these needs to make sure your knowledge and skills are up to date and that you are competent to practice”. If the Legal Service Board (LSB) gets its way, however, this may be about to change.

In July 2021, the LSB published the results of its research into public attitudes towards ongoing competence in legal services. The research was commissioned by the LSB to gauge the views of the general public when it comes to whether the current system provides sufficient confidence in the professional competence of lawyers, and if not, what measures would provide this reassurance. Many in the sector may see this as a hint of things to come in the near future, specifically the LSB’s new requirements for legal professionals, which are expected later this year. So what does the LSB’s research tell us about the possible future shape of legal professional regulation in the UK?

What did the LSB’s research into public attitudes to legal competence uncover?

The main thrust of the LSB’s findings, unsurprisingly, is that the vast majority of the public (95%) expect lawyers to be competent in fulfilling their role, and this should be demonstrated throughout their legal careers. Just over half (55%) of those asked believed that continuous competence checks were already in place. The study also found:

  • Survey respondents, in general, said they would not know how to gauge professional competence in lawyers as they have little experience of working with them.
  • Those asked were surprised at the lack of consistent and mandatory requirements for legal practice – interestingly, many survey respondents (~30%) were themselves in professions that are regulated.
  • Many people were concerned that the lack of ongoing competence checks opens the door to incompetence and potential harm.
  • 87% of survey respondents agreed that regulators should do more to improve confidence in the competence of those in the legal profession.

What does the research suggest we may see when it comes to new legal practice requirements?

As part of the study, panellists were asked about potential changes to the current arrangements for ensuring public confidence in the legal profession. The panel looked at six different possible measures that regulators could introduce, including:

  • a standard competence framework for all lawyers
  • mandatory CPD
  • revalidation
  • spot checks
  • remediation
  • feedback

The panel acknowledged that each measure has its own advantages and disadvantages, and they did not go into detail about how each could be implemented. As a result of the discussion, it was suggested that rather than one measure, a ‘suite’ of measures was most likely to prove effective. The most likely measures were narrowed down to:

  • A single consistent competence framework – including “a matrix that reflects both different areas of law and different levels of seniority/responsibility”
  • Mandatory CPD – including “routine and mandatory CPD requirements, with an assessment element”
  • Recertification linked to competence – survey respondents, looked at the medical system for revalidation and concluded that a similar approach might work in the legal profession. They also concluded that a system of linking recertification to competence is needed. This could be achieved by requiring a portfolio of both qualitative measures (case reviews and client feedback) and quantitative measures (case success rates etc.)
  • Audits or spot checks by regulators

Dr Helen Phillips, Chair of the Legal Services Board, said, “This research shows that there is a gap between what the public expect when it comes to lawyers’ competence and what checks are currently in place. We will be developing our thinking on what more needs to be done in this area to build public confidence, and engaging widely on our emerging thoughts”.

Summing up

This report from the LSB will be viewed by many as them getting their ducks in a row before introducing a new set of competence requirements for legal professionals later in 2021. One major factor which will need to be considered by the LSB is the time, cost, and administrative burden of any new measures which are introduced. Ultimately, implementing a series of new competence requirements cannot come at any cost, so an efficient approach that taps into existing measures should be considered. The precise requirements and how these will be implemented remain to be seen.

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