Legal regulators respond to “continuing competency” push

On 21 January 2020, the Legal Services Board (LSB) launched a call for evidence concerning the continuing competence of lawyers.

The oversight regulator stressed the importance of ensuring legal professionals maintain a high level of competence over the course of their careers. It subsequently recommended mirroring both the education and healthcare sector, in terms of intermittent observation and training.

This has been received with support across the board. Both, the Solicitors Regulation Authority (SRA) and the Legal Services Consumer Panel (LSCP) have responded positively, with pledges to review their own approaches. One thing is for certain, change is afoot.

LSB question lack of regular, formal assessments

Back in January, the LSB reached out to legal regulators. It sought to discover how regulators ensure that professionals within the sector maintain a consistently high level of competency.

In this call for evidence, the watchdog stated that when it came to defining competence, there was no “shared definition” of what this meant. Meanwhile, it noted that although there are varied approaches to ensuring ongoing competence, there is a significant lack of consistency. Consequently, it outlined that some approaches are more robust than others.

The LSB also stated that often, consumers merely assume that legal professionals are trained to a high level of competency. Additionally, the watchdog highlighted that consumers find it particularly difficult to assess the quality of the legal services they are provided with. That being said, it also pointed out that in comparison to other professions, research conducted by Ipsos Mori in 2019, found that British consumers have little trust in lawyers (26%).

Moreover, the LSB found that regulators place great emphasis on competence assurance when entering the profession, but have little focus on post-qualification competence.

Matthew Hill, Chief Executive of the LSB, commented: “We know that consumers assume legal professionals are required to demonstrate competence throughout their careers. In reality, once qualified, there are few formal checks on competence”.

He added:“We want to understand and build consensus around what works well in supporting legal professionals to demonstrate competence throughout their careers and explore whether existing frameworks meet public expectations and protect people from harm. Ensuring legal professionals remain competent throughout their careers will help increase trust in legal services and improve access to justice.”

SRA reflects on developments in the sector

Responding to the LSB’s call for evidence on 29 June, the SRA agreed that continual competence of legal professionals is paramount to the consumer-focused legal services market. However, when it comes to a sector-wide definition of competency, the association argued that the sector is far too varied for this to be effective.

Instead, it presented its own competency statement as providing enough flexibility to target the key activities required for effective performance in the sector. Although this isn’t necessarily a view held across the sector. APIL, which has its own accreditation scheme, argued that the SRA’s competence statement was “far too broad to be effective”.

Exploring how the SRA would assure ongoing competence, it stated that its approach is based on reflection and development, and ultimately underpinned by four essential principles. These principles are:

• Consumer protection
• An open and diverse marketplace, with regulatory activity targeted at risks it identifies and areas of specific need
• Access to justice
• Proportionality

In terms of monitoring and enforcing competency, the SRA states that it requires individual solicitors to make a declaration that they have adhered to sufficient training and development throughout the year. Reports of this individual professional development are reviewed to certify competency. Regulatory action is taken when solicitors do not comply with this obligation.

Its response also lists a range of regulatory tools used to ensure continual development and competence of solicitors. Some of these tools include targeted visits to firms where the SRA  has identified risk, as well as thematic reviews of high-risk areas, and routine horizon scanning.

The SRA also referenced its move away from enforcing the accumulation of training hours. It reported that an early review of new competency training requirements, showed that in the majority of firms, solicitors had either maintained their level of learning and development (52%) or increased their efforts (40%). Additionally, it noted that almost 40% of solicitors found that their competency had increased, after the removal of the 16 hours requirement.

Looking ahead, in its response, the SRA announced the launch of a strategic review on its competency approach. This review will address the following questions:

• Is there evidence of any issues around compliance with its continuing competence arrangements?
• Is its current approach effective and targeted where it needs to be to assure continuing competence?
• What can it learn from other sectors?

The SRA has also set out a series of measures, to enhance the experience of consumers. This includes, introducing the Solicitors Register, implementing the SRA Transparency Rules, and developing consumer information to provide consumers with additional guidance when choosing a solicitor.

LSCP highlights lack of transparency

Similarly, on 2 July, the LSCP published its response to the LSB’s call for evidence. In the letter, written by Sarah Chambers, the Chair of the LSCP, it was outlined the panel agreed that lawyers’ initial training does not ensure a continual guarantee of competency. As a result, the panel stressed the importance of subjecting solicitors to ongoing assessments throughout their careers, with proactive and reactive competence checks.

It also argued that the LSB should be “bold” and go further than setting a basic minimum standard for what qualifies as “competency”. Instead, the panel said the watchdog should seek to clarify what “good” means.

Moreover, the panel outlined that very few consumers have the tools required to assess the competency of lawyers. Subsequently, it stated that, in effect, consumers take a “leap of faith” when purchasing legal services.

Referencing its own research collected through “The Tracker Survey,” it found that only 54% of consumers polled find it easy to assess the quality of the service they are provided with. Correspondingly, its Quality Research report, which will be published in July, found that most consumers determine quality based on factors such as, website quality, and the provider’s longevity in the sector.

The panel also voiced its support of an outcome-focused model for continuing professional development. However, it did argue that Continual Professional Development (CPD) arrangements are not enough in isolation. It stated that this should be accompanied by peer review, reviews of permission to practice after a fixed time, and of course, periodic re-examination.

While the LSCP noted the importance of continually testing skills and competence, it argued that it is important not to overlook the significance of high-quality interpersonal skills. These are deemed essential to ensure that professionals are equipped to deliver services to all customers.

Accompanying this, it emphasised the importance of ensuring that professionals are competent in technology related skills, due to the ever-evolving technological landscape of law. Moreover, the letter stated that another helpful way of ensuring continual competence, is to promote a more transparent culture. This would allow solicitors identify competency gaps, and learn from them.

The call for evidence closed on 26 June 2020, and LSB is currently processing and analysing its findings. A report will be released later in 2020/21.