When the time approaches for solicitors to make their Annual Declaration we ask: where’s the evidence base for doing so?

Every year, at about the same time, solicitors make their Annual Declaration in order to renew their practising certificate. This is also the ‘season’ when professional indemnity insurance is renewed and insurers enquire of the insured’s solicitors whether there are any notifications or circumstances of which they need to make the insurer aware.

It is a busy time for those involved in risk and compliance including the COLP at each firm.

As we all prepare for this first renewal since the SRA’s introduction of Continuing Competence, we need to consider the evidence which is needed from each and every solicitor and Registered European Lawyers (REL) within the Continuing Competence regime to enable them to make their Annual Declaration.

There is still a small minority of solicitors for whom Continuing Competence has passed them by. 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.

The vast majority of solicitors and RELs seeking to comply with the requirements of the Continuing Competence regime, will have some idea of what is required in terms of an ‘evidence base’ to support their making an Annual Declaration. However, clarification is often needed to ensure that each solicitor makes a valid and accurate Annual Declaration.

Most Managing Partners or COLPs 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 to ensure that each solicitor has complied with the requirements. On the other hand key points may have been overlooked or ignored.

So what do you need to do to make a valid Annual Declaration which complies with the SRA’s Continuing Competence regime and to 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 and RELs regarding the making of an Annual Declaration.

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.

Every solicitor and REL 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. i) Completion of the Risk Questionnaire sent by the firm’s Professional Indemnity Insurer ahead of the firm’s application to renew its professional indemnity insurance
2. ii) Practising Certificate Renewal

The learning and development needs of each solicitor 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

What each solicitor 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 evidence base is needed to make a valid Annual Declaration?

1. Clear and accurate records

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 record keeping process has changed but it need not be complex. It should however, be clear and accurate.

Each solicitor should have both a:

1. i) Development plan – which needs to be completed and mapped effectively to the Statement of Solicitor Competence
2. ii) Development record – which is updated with learning and development activities and reflections and can be collated with their Development Plan

Where both documents are regularly reviewed and updated by the solicitor / REL to include all relevant learning and development activities, they can with confidence make their Annual Declaration knowing that their Development Plan and Development Record is accurate and complete.

2. Where things go awry

A common initial error is where a solicitor fails to set out clearly or accurately their learning and development needs in their Development Plan. This needs to be avoided at all costs, as this does not comply with the Continuing Competence or indicate a willingness to comply with the ongoing Continuing Competence requirements.

• It is essential that solicitors not only 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), but also that they record these reflections in the Development Plan.
• Applying the 70:20:10 model for learning and development – 70% = ‘on the job learning’ 20% = learning through coaching / mentoring / supervision and 10% = structured training. Many ‘on the job’ learning opportunities are overlooked or simply not identified as such in individual solicitors’ Development Plans. By this oversight, opportunities are lost and many learning and development activities which properly fall within the Continuing Competence process go without record or reflection.
• Solicitors should learn from what went wrong, from what went well and record what they have learned in their Development Record. 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: 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 will I apply what I have learned to my practice?

3. Records that you don’t want to see

There will inevitably be some non-conformity and poor attention to detail amongst the majority of solicitors covered by Continuing Competence.

Examples

• A poorly written, partially completed or inaccurate Development Plan.
• Inaccurate, incomplete Development Record – only a small percentage of the solicitor population in at least one Top 50 law firm have accurately identified individual L&D activities which they have undertaken and then written these 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 individual 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 individual solicitor’s appraisal / performance review.

4. Preparing to make an Annual Declaration

A clear message is vitally important – ambiguity can be exploited to attribute blame to others, where individual solicitors have not complied with the Continuing Competence requirements.

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 before they make their Annual Declaration. Provide straightforward and clear compliance guidance.

You may wish to reinforce this guidance by reminding everyone that it is a specific obligation of professional conduct imposed on each individual solicitor and REL to comply with the Continuing Competence regime and make their Annual Declaration.

Individual solicitors and RELs need to ensure that they understand the specific requirements placed on them to write and then 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?

and

• Monitor progress: Is the Continuing Competence process that you have implemented being followed to the letter? Partially? Or not at all?

Then ask yourself: Do I need to take specific steps to ensure an appropriate level of compliance so that each solicitor / REL’s Annual Declaration complies with the SRA’s Continuing Competence regime?

Further Steps

If you are not sure about the Continuing Competence process as it applies to you, your team or your firm / organisation, and particularly if you are concerned that you are not meeting the STRA’s requirements with regard to ethics, professionalism and judgement, then do please contact our team on 01444 240 124 or click here.