The
Solicitors Regulation Authority says its plans to reform continuing
competence will bring CPD ‘into the 21st century’. But is there a risk
its laissez-faire approach could be open to abuse?
After nearly
three decades, the CPD regime is clearly due an overhaul. Despite strong
support for retaining a compulsory minimum hours requirement, the SRA
is now preparing the ground for a new regime which relies on
self-certification.
There is still much work to be done. By focusing on existing
provisions in the Handbook, which require a proper standard of legal
practice and of training and supervision, the SRA is putting the onus
squarely on individuals and entities to make sure they do the
appropriate training to ensure they provide a competent legal service.
John
Wotton, chair of the Law Society’s education and training committee,
says the committee shares many of the SRA’s objectives in terms of best
practice. ‘It is a regime that will suit well-resourced firms, while the
overwhelming majority of practitioners will keep up their CPD as they
always have,’ he says.
‘But it is vitally important the system
also works for the financially constrained, including those advising
vulnerable clients. In difficult times, the temptation will be to take
short cuts and, without a minimum hours’ requirement or some tough
sanctions, there is a real danger that investment in training will drop
and standards atrophy.’
While the Law Society suggested a minimum
of 24 hours in its response to the Legal Education and Training Review,
Wotton says: ‘We didn’t nail our colours to any particular number of
hours in our response to the SRA consultation because it is about
quality and relevance, not quantity. But the new system needs to be
underpinned by some compulsory element.’
So how do practitioners
and providers view the future regime – and will there be a ‘blood bath’
among the training industry, as some are predicting?
The SRA
consulted on three options. It chose option 1, which focuses on
self-certification, despite the balance of the 64 responses to its
consultation paper – including those from the Law Society, junior
lawyers, sole practitioners and in-house counsel – favouring option 3,
which retained a minimum hours’ requirement. The Legal Services Consumer
Panel favoured the least popular option 2, which would have required
practitioners to record training without any compulsory number of hours.
Individuals
know best what learning styles work for them, which might be listening
to bite-size chunks on a podcast on a bus to work
Julie Brannan, Solicitors Regulation Authority
So
why ignore the views of some of the main representative bodies? Julie
Brannan, the SRA’s director of education and training, acknowledges that
their choice will mean a change in approach and culture. ‘But we
weren’t asking for a vote,’ she says, ‘and many of those supporting
option 3 saw drawbacks with its focus on time spent rather than on what
was learnt.
‘What we want to do is put learning at the heart of
continuing competence in a way which maximises flexibility and
recognises that firms know best what their staff training needs are,
while individuals know best what learning styles work for them – which
might be listening to bite-size chunks on a podcast on the bus to work.’
This
is not a soft option, she stresses, maintaining it will be tougher than
the current system because people will have to assess their competence
and reflect on the training they take. They will also have to sign an
annual declaration confirming this when they renew their practising
certificate.
The SRA’s move reflects a trend to reform CPD – the
Society for Trust and Estate Practitioners dropped its 35-hours
requirement in April, while CILEx is replacing its 16-hours minimum with
a requirement to record nine ‘outcomes’. However, the Costs Lawyer
Standards Board is sticking with its 12-hours minimum.
The CPD
regime certainly needs reviewing, says Hannah Mackinlay, a
non-practising commercial property solicitor who set up website
www.propertylaw.guru and has been giving CPD lectures for the last
decade. But the SRA should have put out its guidance on how the new
system would work before it made its decision, so people could see there
was ‘method in its madness’, she says.
‘I feel like a turkey
voting for Christmas when I say I think the SRA is going in the right
direction, as my income may be severely affected if there is a move away
from the traditional course-based systems.’
Most research shows
that individual research, on-the-job learning, and learning from
experience are the best forms of learning, she says, but this does not
count under the current system.
The difficulty with reform, she
says, is that law firms are generally not prepared to embrace a more
effective system. ‘Only the larger firms have the luxury of L&D
departments, and even those that do only think in terms of webinars and
courses as a way of providing training. Also, to suggest that most
lawyers should engage in “reflective learning” is to assume too much. In
the main, most won’t have a clue what that means – and to be honest,
neither did I until I researched it.’
Sole practitioner Hilary
Underwood drafted the Sole Practitioners Group’s (SPG) response to the
consultation. ‘Solicitors generally don’t like non-prescriptive
approaches, which can be seen from the confusion and uncertainty
surrounding the transition to outcomes-focused regulation,’ she says.
‘The
buck stops with sole practitioners when it comes to the quality and
competence of the service, but will others really reflect on the quality
of practice within their organisation, identify areas for development
and planning development activity, or will they be too busy making
money?
‘This is a huge sea change and only time will tell whether there is a watering down in professional development.’
Pamela
Henderson, senior lecturer in law at Nottingham Law School, led the
review of CPD for the SRA which was fed into the Legal Education and
Training Review. She says the new regime will remove the current
barriers of costs, time, relevance and location because practitioners
will only have to undertake as much CPD as is necessary for them each
year and they will be able to do it in whatever way works for them. But
it will need a ‘robust’ cycle of planning, implementation, evaluation
and review for it to work as desired.
What is not yet clear is how
the SRA will police the new system. Brannan says the SRA will not be
prescribing how people record their training as per option 2.
‘It
was seen as too inflexible and just replaced a box-ticking exercise with
a form-filling exercise,’ she says. ‘It is the worst of all worlds in
the sense you still have to prove competence without the clear input
rule of 16 hours.’
However, she says that, as a matter of common
sense, practitioners will want to keep a record of their learning, while
firms will need to have systems in place to show compliance. ‘If
someone is involved in disciplinary proceedings, the question will be
whether the standard of their work was competent, and it will be an
aggravating feature if they are unable to demonstrate that they have
taken training seriously and complied with Handbook requirements.’
However,
Sophia Dirir, chair of the Junior Lawyers Division, says that, without
rigorous enforcement, the SRA will only know that a firm or individual
has not carried out adequate training after something has gone wrong.
‘CPD
training should also have to be signed off so the SRA knows who has
done what and how relevant it is,’ she says. ‘One way would be to
declare four hours every quarter, which would spread the CPD across the
year.’
For Underwood, signing the annual declaration will be an
effective stick for individuals, but she also warns the threat of audit
and supervision by the SRA is less direct and may be ineffective.
However,
Brannan says enforcement has to be proportionate to the risk. ‘If we
identify problems in a firm or practice area we will look at training
and see if we need to issue guidance,’ she says, though she accepts
there may be cases involving vulnerable consumers ‘where we have to take
a more robust line’.
She says the SRA considered making
compliance a requirement on COLPs but recognised different firms have
their training set up differently, so it will be up to firms to decide
who is responsible for ensuring compliance.
‘I am not sure how
effectively the old system was policed,’ says Geoff Owen, learning and
development consultant with the Parabis Group. ‘There will need to be a
system for checking compliance but, with self-certification, the key
will be making the training as attractive and practical as possible so
people want to do it.’
Adrian Dion, managing director of the
SOLICITORS group, which has over 1,250 member firms (largely private
practice law firms) and trains over 20,000 lawyers annually, believes
most solicitors will continue to record their CPD.
‘In all the
various professional markets in which we operate, professionals are
required to log their CPD,’ he notes. ‘Our customers in those markets
believe this is good discipline and also helps reflect on how they have
structured their training during the professional year.’
One
consequence of removing the compulsory element is that the SRA will no
longer accredit providers, though it admits it was of limited value, as
it was difficult to assure the quality of training.
An opportunity for shortcuts?
For
junior lawyers and in-house counsel, the big fear about the SRA’s
decision to drop the minimum hours requirement is how they will argue
the case for paid-for external legal training when budgets are being
squeezed.
Sophia Dirir, chair of the Junior Lawyers Division, says
the SRA is being ‘idealistic’ if it thinks it can take a step back and
essentially leave CPD to firms and individuals.
‘Many firms are
struggling financially and removing the prescribed CPD hours will just
open up opportunities for some to take shortcuts’, she fears.
‘Our
members believe that, as junior lawyers, we should be required to do
more CPD than our more experienced counterparts. But newly qualified and
junior lawyers are also often vulnerable to pressures within their
firms, including bullying and concerns about job security, so they are
unlikely to speak up about inadequate training, even when it is
officially their responsibility.’
CPD time is a ‘very crude
measure’, says Natalie Jobling, chair of the C&I Group’s training
committee. ‘But my personal view is that removing it will make it more
difficult for some in-house lawyers to justify external training.’
The
group says it is still unclear how the proposed changes will operate
within organisations employing solicitors in-house. In the meantime, it
is surveying its membership to build a picture of how members see the
changes affecting their organisation’s attitude towards training and to
gain insight into the kind of training they want the group to provide.
There
will need to be a culture shift in the profession, Julie Brannan, the
SRA’s director of education and training, acknowledges.
But she
argues: ‘In other areas of work people negotiate with their employers
about their training needs and it is a better conversation to have, that
“I need to do this training because the law has changed and I need to
understand how it affects my practice” rather than “I need to do this
course so I can tick a box”.’
She says anyone who feels they
aren’t getting the training they need can contact the SRA. ‘Firms have
an obligation to ensure all staff – not just those who are qualified –
are properly trained and we will hold them to that,’ she warns. ‘If a
firm gets into hot water and hasn’t trained its paralegal staff, for
instance, that will be an aggravating feature.’
Currently it
authorises 1,300 external CPD providers and around 1,500 firms and
lawyers so they can provide accredited training in-house. This will be
phased out from November, which will mean a loss of income to the SRA of
about £500,000, but will mean savings for in-house providers who will
no longer have to pay the annual authorisation fee.
The SPG is an
external CPD provider. Underwood says it will mean a cost saving for the
group ‘but we don’t wish to make savings at the risk of incompetent
training providers having access to the profession’.
The problem
with accredited courses, says Henderson, was they ‘attracted a premium
price without necessarily offering premium quality – with some
honourable exceptions. Now that compulsory element has gone, people may
be able to reduce expenditure and time in certain areas and focus on
those activities that are genuinely useful to them’.
One area the
SRA will have to address is the impact removing accreditation will have
on reciprocal arrangements with foreign bars, a concern for firms with
international offices.
Practitioners are also waiting to see what
impact the changes will have on the training market. Progressive Legal
Training, which had provided CPD training since 1995, closed a week
after the SRA announced its plans.
‘There is a blood bath going on
in solicitors CPD,’ says Mackinlay, ‘with decent quality courses
replaced by non-interactive webinars, some of which are of appallingly
poor quality.
‘What you will be left with is huge hall-based
non-interactive lectures, online webinars and, for the lucky few who
work for enlightened firms, in-house tailored training.’
The
challenge for lawyers, she says, is to realise that they are 10-20 years
behind in ‘knowledge management’ and to adapt to this.
‘We need
to move to ‘resources’ rather than ‘courses’ and ‘just-in-time’
training, rather than the current ‘just-in-case’ course training. That
means having easily accessible materials for reference, such as
Practical Law and LexisNexis, updated by third parties, alongside
incredibly tailored training, and bite-sized chunks of advice from
external advisers, such as counsel or other sources, possibly over
Skype.’
The CPD-accredited training offered by the Commerce &
Industry Group has largely consisted of face-to-face events put together
by its training team, together with leading law firms and other
providers.
Natalie Jobling, chair of its training committee, says
it is canvassing members’ views on what it should add to its training
programme, given the new regime could mean external, full-day training
becoming less relevant or more difficult to justify to employers (see
box, above).
Peter Riddleston, head of learning, quality and
development for law firm network LawNet, says member firms receive
training as part of their subscription. ‘We run about 40/50 courses a
year covering both technical legal issues as well as compliance,
business development and practice management.’
He adds: ‘The new
regime is a sensible change as it will allow us more flexibility in what
we do, so I am looking at e-learning products, mentoring programmes and
focus groups, so members can learn from each other in a structured way.
His
instinct ‘is to move quickly to the new system as soon as we can opt
in, but it will be up to members. However, they are progressive, so I
don’t think they will want to hang on to the old system if they don’t
need to’.
Timeline for change
With
all the debate around the CPD reforms, it is important solicitors
remember the old regime is still in place and they must complete their
minimum 16 CPD hours by the end of October.
Looking ahead:
September
Consultation on the proposed Competence Statement which will include reference to the newly worded annual declaration.
Autumn
Policy statement in advance of the 2015 practising certificate year explaining what is going to happen next.
Early 2015
Legal Services Board expected to approve changes.
Spring 2015
Publication
of Competence Statement; guidance on how to identify training needs;
tools to help with the process; examples of good practice; suggestions
on how to record and reflect on training.
Spring 2015
Firms can start opting into the new competency system.
November 2016
New regime comes into force on 1 November.
There
will certainly be casualties among providers, says Trevor Hellawell, a
training consultant with MBL Seminars, but that will not be due to the
CPD changes per se but to firms wanting to get the best value from their
training.
‘I think it is an exciting opportunity to look at the
whole CPD spectrum: how you offer it, what firms will need when the
responsibility is cast on to them,’ says Hellawell, formerly head of law
programmes at BPP Professional Development. ‘Those who were taking the
mickey before will go on doing that and those that take CPD seriously
will still do so. There will be a lot for smaller and middle-sized firms
to wrap their heads around so there are great opportunities for
providers to do that thinking for them.’
Stephen Honey, the Law
Society’s publishing and e-learning manager, says the Society’s CPD
Centre, which now has 36,000 registered users, is well placed to support
people in assessing their development needs, setting goals and
reflecting on how useful the training was.
‘With no requirement to
use an authorised provider I image a lot of firms will do more training
in-house, which is a trend I have seen with larger City firms,’ Honey
says. ‘But I still think there will be a market for really good training
with recognised speakers because it saves time and effort for firms.’
Central
Law Training, part of the Wilmington Group, currently offers a range of
three- to six-hour courses across nine major practice areas, as well as
specialist conferences and more than 250 webinars per year.
Mark
Solon, managing director of the group’s legal division, says it is
reviewing its training programme in light of the SRA reforms and he
anticipates it will deliver more in-house training, more online learning
and shorter, more focused training sessions.
He says it is a ‘bold’ move by the SRA and should motivate the training industry to be more modern and creative.
Brannan
recognises that the changes will be harder for smaller firms without an
HR or training infrastructure. The toolkit of materials to be published
next year will help them embed the new approach in their own internal
systems, she says.
This is about flexibility of learning styles.
‘The days of dusty hotel rooms are over,’ she says. ‘This is about using
new technology and means we are beginning to move into the 21st
century.’
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