CPD - Goodbye to a familiar regime by SPONSOR Aon

CPD - Goodbye to a familiar regime by SPONSOR Aon

CPD - Goodbye to a familiar regime

 

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The demise of the Continuing Professional Development (CPD) regime has been signposted for over two years but not everyone will be ready for what replaces it. Most solicitors currently practising have not known any other system of professional development. This leaves plenty for firms to reflect on before the new requirements become compulsory on 1 November 2016.

 

The current CPD regime has not changed dramatically since it was introduced by the Law Society in 1985 (the Solicitors Regulation Authority (SRA) did not become the profession’s regulator until 2007, following reforms introduced by the Legal Services Act 2007). The current requirement that all solicitors should complete a minimum of 16 hours CPD activity every year will cease at the end of October.

 

The SRA has been concerned for some time that the current CPD regime is not fit for purpose. Its main concerns are that the regime is overly prescriptive, focuses on a set number of hours without any focus on how the training achieves competence and is difficult to enforce. One thing not mentioned specifically in its consultation was the abuse to which the regime was subject.

 

A common sight at seminars and conferences every September and October has been the delegate who is clearly only interested in clocking up CPD ‘hours’. Sitting at the back dealing with e-mails and slipping out to take calls, they pay no attention to the subject matter of the conference. Some of the worst abuses were from individuals who turned up at the start of the course, registered for CPD and then disappeared.

 

The regulatory context for the new rules stems from Principle 5 in the SRA Handbook 2011 which requires all solicitors to provide a proper standard of service to their clients. This principle is expanded on in the SRA Code of Conduct 2011 at Outcome 1.4 (solicitors must have the skills to carry out their clients’ instructions), Outcome 1.5 (the service that solicitors provide must be competent) and Outcome 7.6 (firms must train those working for them to maintain a level of competence appropriate to their work and level of responsibility).

 

However, those obligations are not new, as they have been in place for nearly five years. What is new is the competence statement that will shortly replace the CPD requirements in Part 3 of the SRA Training Regulations 2011. The competence statement is made up of three parts:

  • a statement of legal knowledge;
  • the threshold standard; and
  • the statement of solicitor competence.

The very detailed statement of legal knowledge was originally intended to apply to all solicitors but, in its final form, sets out the level of knowledge required by newly qualified solicitors. All other solicitors can heave a sigh of relief, although they will still need to note paragraph A4c in the statement of solicitor competence and the footnote thereto. The threshold statement, and particularly level 3, has most application to newly qualified solicitors. It is the statement of solicitor competence that is generic and applies to all solicitors.

 

Replacing Outcome TR1 which required solicitors to ‘maintain competence through relevant ongoing training’, the statement of solicitor competence runs to six pages. This takes regulation in a substantially different direction to the trend which has seen the SRA remove 200 or so pages of regulation over recent years.

 

The SRA defines competence as the ability to perform the roles and tasks required by one’s job to the expected standard. It is deliberately flexible to encompass changing job functions.

The statement of solicitor competence covers 4 key areas:

  • ethics, professionalism and judgment;
  • technical legal practice;
  • working with other people; and
  • managing themselves and their own work.

There are 18 key requirements but if you include how these are broken down, there are well over one hundred individual requirements.

 

Some of the matters included are well recognised by insurers as being relevant to claims. For example, from November, solicitors will be expected to disclose when work is beyond their capability (A3a), to recognise when they have made mistakes (A3b), to spot issues that are outside their expertise (A4c), to assess information to identify key issues and risks (A5a), to assess, communicate and manage risk (B7b), to manage clients’ expectations (C2f), to supervise the work of others effectively (C3c) and to keep, use and maintain accurate complete and clear records (D2). However, the whole document requires careful study. With so much detail, assessing their performance against each requirement is not something that solicitors should leave until the last minute.

 

Compliance with the new regime falls primarily on solicitors, but the partners bear responsibility too (see Outcome 7.6 mentioned above). The COLP cannot escape either as he or she is responsible for ensuring that appropriate systems and procedures are in place across the firm, which would include the monitoring of CPD. The SRA decided that there was no need to place any additional obligation on the COLP as existing obligations were considered to be sufficiently all-encompassing, as many will no doubt wryly agree.

 

The process will have to be managed carefully if tension between the firm and its solicitors is to be avoided. Whilst the onus is on individual solicitors to address their training needs, and firms will want to ensure that their solicitors are trained to deliver a competent service, a piecemeal approach could put pressure on a firm’s training budget.

As the training needs of one solicitor are likely to exist elsewhere in the firm, undertaking a firm-wide training needs analysis will help firms to avoid undue pressure on their training budgets by developing a co-ordinated approach. The well-managed firms will have done so already.

 

To comply with the competence statement, the SRA expects solicitors to reflect on what they do before identifying their learning and development needs. These should be recorded in a written training and development plan, although the format of the plan is left up to individuals. Solicitors must then implement the plan and keep a written record of learning activities undertaken, in much the same way that they were expected to keep a written record of CPD activity. As this should be a continuous process, solicitors should then evaluate the learning undertaken, update their development plan and so on in a rolling programme.

 

Before renewing their practising certificate, solicitors will need to confirm that they “have reflected on their practice and addressed any identified learning and development needs”.

 

With no minimum level of training, some worry that the amount of training undertaken will fall, effectively replacing a dysfunctional CPD regime with one that is no better. However, with an ever more mobile workforce, solicitors looking to change firm may want assurances from a prospective employer that they will be supported in keeping to their development plan. On the other hand, when employers are looking to recruit, they may require details of a solicitor’s development plan and activity record so that they can assess the cost to the firm of meeting the candidate’s training needs. Although only time will tell, perhaps the new Competence regime will work better than the one it replaces.

The new rules were announced by the SRA Board on 21 May 2014 to give firms time to adapt to the new requirements. Those that have done so should be congratulated. Those that haven’t need to recognise that the new regime has flexibility but within a far stricter framework and that time is running out to get their homework done.

 

For more information aon this, please contact: Marco D’Ovidio, Associate Director, Aon UK Limited on 0117 948 511.

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