Solicitors will no longer be able to rely on check-box exercises when demonstrating competence to SRA officials. The Regulator has put law firms on notice that from this summer, it will take a proactive approach to ensure members of the legal profession are displaying competence in their work and client dealings.
The SRA’s new stance on competence goes further than the current requirement for making an annual declaration to the Regulator that they have considered their training needs and taken measures to maintain their competence. New actions, including analysing data relating to first-tier complaints and professional indemnity insurance claims, as well as making spot checks on law firms and conducting audits and file reviews, are set to become part of the compliance framework. This is likely to put further pressure on managing partners/practice managers already overloaded with regulatory compliance demands.
SRA Chief Executive Paul Philip said:
‘We expect the profession to deliver a high standard of service to those who need their help. That means we must make sure that solicitors and the employees of firms we regulate have up-to-date skills, knowledge and behaviours.
During 2023, we will further improve how we identify solicitors and firms who are not meeting our expectations and work with individual solicitors and firms where we have competence concerns. We will take enforcement action where necessary to protect consumers where standards fall short.’
The SRA’s new approach stems from a robust 2021 consultation on ongoing competence by the Legal Services Board (LSB).
Current Aproach Is “Out Of Step Compared With Other Professions”
In July 2021, the LSB published a report on public attitudes to ongoing competence in legal services. Twenty three panellists spent four weeks considering the issues in live online focus groups, in an online bulletin board, and through online polling.
Key findings included:
- 95% of people believe that lawyers should have to demonstrate their competence to carry on their profession throughout their careers.
- 55% assumed that lawyers face regular checks on their competence throughout their careers and many panellists assumed that competence checks for lawyers are carried out by employers and/or through spot-checks by professional bodies i.e. regulators who have the skills and knowledge of legal services to judge the competence of lawyers.
- Panellists, many of whom were members of regulated professions such as nursing, dentistry, and engineering, were surprised at the lack of consistent and mandatory competence measuring requirements that applied to the legal profession.
- Panellists were concerned that existing arrangements allow for incompetence or lack of competence to go undetected and unchallenged. This was a particular concern in areas where people face greater risk of harm (for example, in areas of law where mistakes are more prevalent, where the potential consequences are serious, such as immigration and criminal law, or where people are more inherently vulnerable, for example due to youth, disability, or immigration status).
- At the end of the four weeks, panellists unanimously concluded that the current measures did not give them sufficient confidence that lawyers meet required levels of ongoing competence throughout their working lives.
Twelve months after the report was published, the LSB released a new statutory statement of policy on ongoing competence. It provides clear outcomes that the legal services regulators should meet to ensure that “legal professionals have the necessary and up-to-date skills, knowledge, attributes and behaviours (i.e. are competent) to provide good quality legal services.”
Legal regulators must now set standards of competence and ensure that these standards are maintained. This will also address the issue noted by the Legal Services Board that the current approach is “out of step compared with other professions, where there is a greater focus on assessing and understanding levels of competence.”
Concluding Comments
Although returning to the days of compulsory Continuing Professional Development (CPD) is not on the cards, managing partners and practice managers should take steps to measure and review their team’s competence, including their knowledge of new legislation, policies, and case law in their practice areas, and create training and personal development plans to ensure ongoing competency. All findings and subsequent actions, as well as records relating to any client complaints and indemnity insurance claims, need to be documented and filed so that if the SRA does perform a spot check, evidence of the firm’s steps to maintain ongoing competence are easily accessible.
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