Is it really more than eight months since the SRA’s Continuing Competence regime for all solicitors and Registered European Lawyers (RELs) came into force? It is. How has it been for you?

There will be a minority of solicitors for whom Continuing Competence has passed them by – so no change for them. They will get a nasty shock when renewing their practising certificates believing that all that’s necessary is to tick a box confirming that they have completed 16 hours of CPD.

For most solicitors there will have been some change. In the global and Top 150 law firms, in all well organised firms of any size and for in-house legal teams; the solicitors and RELs within the SRA’s Continuing Competence regime will have received an email explaining the change from CPD to Continuing Competence; outlining their individual responsibilities and what they must do to comply.

Most Managing Partners or COLPs (Compliance Officer Legal Practice) in law firms and General Counsel in other regulated entities, will set out a process for individual solicitors to follow which they believe complies with the SRA’s Continuing Competence regime. Depending on how well that process has been designed and the chosen implementation methodology, this may be sufficient. On the other hand, key points may have been overlooked or ignored.

The purpose of this article is to explain what you need to do to comply with the SRA’s Continuing Competence regime and identify some of the common errors being made by individual solicitors and the management of the entities they work for.

A Reminder: What The SRA’s Continuing Competence Regime Requires of Solicitors & RELs

The SRA’s Continuing Competence regime focuses on the individual learning and development needs of solicitors and RELs and is no longer simply an issue of counting CPD hours.

Each solicitor’s learning and development needs are measured by reference to the SRA’s Statement of Solicitor Competence.

The Statement of Solicitor Competence defines competence as:

“the ability to perform the roles and tasks required by one’s job to the expected standard”

This approach recognises that requirements and expectations may vary according to an individual’s job role and the context in which they are working. It also recognises that an individual’s competence develops over time and will vary according to their experience and time in practice.

The Statement of Solicitor Competence covers four distinct areas:

1. Ethics, professionalism and judgement
2. Technical legal practice
3. Working with other people
4. Managing themselves and their own work

Every solicitor must reflect on their learning and development needs measured against the Statement of Solicitor Competence across each of these four areas.

Detail of the specific areas of competence covered by each of the four areas is set out in the Statement of Solicitor Competence http://www.sra.org.uk/solicitors/competence-statement.page

Every solicitor must make an Annual Declaration in the following terms in order to continue to practice:

“I have reflected on my practice and addressed any identified learning and development needs”

The Annual Declaration is likely to be made in late July or August of each year ahead of two important steps in the ‘legal calendar’:

1. Completion of the Risk Questionnaire sent by the firm / regulated entity’s Professional Indemnity Insurer ahead of the firm’s application to renew its professional indemnity insurance
2. Practising Certificate Renewal

What Each Solicitor & REL Needs to Do

1) Reflect and Identify: Reflect on your professional practice, review your strengths and weaknesses and how these tie in with the SRA’s Statement of Solicitor Competence, your objectives and the skills needed to provide a proper standard of service to clients. By following this reflective process you are able to identify your specific learning and development needs.

2) Evaluate and Plan: Evaluate your learning and development needs, then plan how you will address them, including the steps that you will need to take. You may use a broad range of activities to address your needs, including: individual learning,  e-learning, one-to-one coaching, formal training courses, reviewing a recent matter, undertaking research, know-how development etc. Set yourself learning and development objectives and outcomes. Document your learning and development objectives and the anticipated outcomes in your Development Plan.

3) Address and Record: Take the steps that you planned to address your learning and development needs. Set out what you have achieved (either partially or in full) and the learning and development which still remains to be addressed. Reflect on what you have learned and how you will apply it to your job role. Record these reflections in your Development Record.

4) Review and Declare: review what you are doing to address your learning and development needs, evaluate whether further action is needed and make your Annual Declaration.

The Importance of Mapping To The Statement of Solicitor Competence

Mapping to the Statement of Solicitor Competence is vitally important, it impacts on all four steps in the Continuing Competence process.

In the first step – Reflect and Identify every solicitor needs to reflect on their professional practice, review their strengths and weaknesses and how these tie in with the SRA’s Statement of Solicitor Competence. Referencing the Statement of Solicitor Competence is vital at this stage. The reflective process needs to be undertaken with direct reference to the Statement of Solicitor Competence – it will not be effective or compliant without mapping in this way.

At the Evaluate and Plan point in the process, mapping to the Statement of Solicitor Competence is important to ensure that your planned learning and development activities will address the learning and development needs that you have identified. You will need to document the links to the Statement of Solicitor Competence in your Development Plan.

When you reach the Address and Record point in the process, the mapping you have done pays dividends because you can now record where the learning and development activities which you have undertaken, align with the Statement of Solicitor Competence as a key part of you Development Record.

At the Review and Declare point in the process the mapping which you have done enables you to review your learning and development activities in relation to the Statement of Solicitor Competence and your practice, so that you can set out in your Development Record, what you have learned and how you are (or intend to) apply it to your practice.

What We Have Learned in The First Six Months of Continuing Competence – Six Issues Identified Through Implementation

1. Keep it Simple

Before 31st October 2016 the basic requirement for all solicitors was to complete 16 hours of CPD. You cannot get more straightforward than that.
Each solicitor was required to maintain a record of the CPD which they had undertaken during the year; in many firms this was held electronically on a centralised learning management system (LMS). At the end of the training year each solicitor had to be certify that they had completed 16 hours of CPD hence, they would email / call the person who managed the LMS and ask for confirmation that they had completed 16 hours. If they had, ‘job done’; if not, attend training courses or undertake learning and development activities sufficient to reach the 16 hour requirement.

Since 1st November 2016 the process has changed but it need not be complex. You can keep it simple by ‘using the right tools for the job’, which includes effective continuing competence software to ensure that:

1. Each solicitor’s Development Plan can be completed simply and mapped effectively to the Statement of Solicitor Competence (and your own firm’s competence framework if appropriate)
2. Each solicitor’s Development Record is dynamically updated with L&D activities and reflections and can be collated with their Development Plan
3. Each solicitor can with confidence make their Annual Declaration knowing that their Development Plan and Development Record is accurate and complete.

2. Reflective Practice

The first step Reflect and Identify is when solicitors reflect on their learning and development needs by carefully considering the underlying skills sets which they need to develop to be competent in all the areas covered by the Statement of Solicitor Competence (SOSC).

This may not be as easy to do as it is to state the need to do it.

In some areas it will be straightforward. e.g. SOSC A1.c ‘Identifying the relevant SRA Principles and rules of professional conduct and following them’. The first element of this can be achieved by individual study / e-learning. However, the second element is more complex as it requires reflection on significant professional conduct decisions made by the solicitor (or the partner / senior solicitor supervising them) on client matters. This ‘on the job’ learning is equally, if not more, important. It requires real focus to be aware of these learning and development opportunities as they are unstructured aspects of working life (not a workshop, course or e-learning).

We have noticed that many ‘on the job’ learning opportunities are overlooked or simply not identified as such.

If this continues to be the case, many learning and development activities which properly fall within the Continuing Competence process go without record or reflection.

3. Learning From What Went Wrong and What Went Well

The purpose of continuing competence is to ensure that individual solicitors identify their learning and development needs, address them and reflect on what they have learned in order ensure a proper standard of service to clients in accordance with Principle 5 (SRA Principles 2011).

Example A: SOSC A2.b ‘Reflecting on and learning from practice and learning from other people’.
Many of us would say that we learn from our mistakes. However, few of us will have reflected on:
What we did?
How to avoid doing it again?
What best practice requires?
What I will do differently next time.
How I will apply what I have learned to my practice.

Example B: SOSC A3 Work within the limits of their competence and the supervision which they need including…’  then goes on to identify a number of important aspects to this competence e.g. A3.b Recognising when they have made mistakes or are experiencing difficulties and taking appropriate action.

To adopt the Continuing Competence process and apply it ‘to the letter’ requires every solicitor to reflect on their practice and identify where situations have occurred which fall within A3.b. They should then evaluate each situation and plan the learning and development which they will undertake to ensure that these situations are not repeated and other potential situations are avoided.

The ‘plan the learning and development they will undertake to ensure that these situations are not repeated or other similar future situations are avoided’  may well be the more difficult aspect of A3.b.

4. Broadening the Range of L&D Activities

Through the implementation of Continuing Competence L&D professionals and individual solicitors need to think more broadly than courses, workshops and e-learning to identify, explore and plan the most appropriate learning and development activities to address each individual’s learning and development needs.

Although this will take time, resources, effort and a willingness to adopt a new approach, the rewards can be significant.

Key benefits of this approach are:

i)   Increased ‘engagement’ with L&D activities amongst solicitors at all levels of experience
ii)  Assimilation of L&D activities within the work of individual solicitors, L&D ceases to be an ‘add on’ it is woven into an individual’s daily work
iii) A reduction in ‘class room hours’ i.e. solicitors learn more flexibly and don’t spend as many hours in the training room
iv) Continuing Competence creates a platform for innovation in the delivery of L&D
v)  L&D activities may be focused on the L&D needs of individuals (or a cohort / team) rather than on collecting CPD hours
vi) Under-performance can be addressed using the continuing competence process

5. Record Keeping

There is some non-conformity and poor attention to detail amongst the majority of solicitors covered by Continuing Competence. Although this is markedly reduced, it still occurs even where effective systems are in place.

Are some solicitors and RELs ‘just not getting it’?

Examples

• Less than 10% of the solicitor population in at least one Top 50 law firm have accurately identified individual L&D activities which they have undertaken and written them up in their Development Record
• Attendance at training courses / workshops / know-how groups etc. are the L&D activities most often set out in the Development Records of individual solicitors
• Whilst attendance at training courses / workshops / know-how groups etc. is well documented, the reflections of attendees regarding their L&D needs and how they intend to implement what they have learned is less well documented or not documented at all
• Development Records are often ‘patchy’ and sporadically updated, rather than well structured and regularly maintained
• Development Plans vary in quality – often in combination with the quality (or otherwise) of the appraisal / performance review process

6. Confusion and Misinterpretation

Clarity of message is vitally important – if there is ambiguity, this can be exploited to attribute blame to others, where solicitors have not complied with continuing competence.

Make sure that you spell out what each individual solicitor and REL is being asked to do in your firm to comply with the SRA’s Continuing Competence regime.

The Next Four Months

Eight months has passed since the SRA’s Continuing Competence regime came into force. The next four months will be significant to see how the profession is coping with this paradigm shift from CPD.

Between July and September individual solicitors and RELs will be:

• Responding to the ‘risk and notifications questionnaire’ circulated in order for your firm / organisation to renew its professional indemnity insurance cover for 2017-18
• Making their first Annual Declaration

Individual solicitors and RELs need to ensure that they understand the specific requirements placed on them to maintain a Development Plan, and to keep their Development Record up to date, in order to ensure that they have done sufficient to be able to make their first Annual Declaration

If you have management / compliance responsibility within your firm or organisation and you have implemented a Continuing Competence process to meet the SRA’s requirements:

• Review the communications that you have already sent to those covered by the continuing competence regime: Do you need to communicate further to reinforce / underline the key messages to ensure an appropriate level of compliance?
• Monitor progress: Is the continuing competence process that you have implemented being followed to the letter? Partially? Or not at all?
• Remedial steps: What steps do I need to take to ensure an appropriate level of compliance?

Our hope is that this blog will help you deepen your understanding of the various issues which you are likely to encounter when implementing Continuing Competence, which you and others are likely to encounter. The process needn’t be an onerous one if approached in the right way.

Further Steps

If you are not sure either about the Continuing Competence process as it applies to you, your team or your firm / organisation; particularly if you are concerned that you are not meeting the SRA’s requirements, then do please contact….

Or you may be interested in downloading our e-Book: Continuing Competence Made Easy.