Ethics, professionalism and judgement are business-critical skills that are often absent or under played in the learning and development of solicitors at all stages of their careers.

How should this be addressed?

The fundamental link between continuing competence and professional conduct

Learning and development is no longer operating in isolation, as if it were an island set apart from the mainland of professional practice. The SRA has now linked the new Continuing Competence regime to mandatory Principle 5 of the SRA Handbook:

Principle 5 states ‘every solicitor is expected to provide a proper standard of service to clients’.

By making this link, non-compliance with the Continuing Competence regime becomes a fundamental breach of SRA Principle 5 and a matter of each solicitor’s professional conduct.

The guidance notes to Principle 5 have been revised to make meeting the competences laid out in the SRA Statement of Solicitor Competence a core part of providing a proper standard of service to clients.

Summary of the continuing competence regime

The SRA’s Continuing Competence regime focuses on the individual learning and development needs of solicitors 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:

A. Ethics, professionalism and judgement
B. Technical legal practice
C. Working with other people
D. 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”

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.

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.

Ethics, Professionalism and Judgement: What is covered?

A Ethics, Professionalism And Judgement

A1 Act honestly and with integrity, in accordance with legal and regulatory requirements and the SRA Handbook and Code of Conduct, including:

a. Recognising ethical issues and exercising effective judgement in addressing them

b. Understanding and applying the ethical concepts which govern their role and behaviour as a lawyer

c. Identifying the relevant SRA principles and rules of professional conduct and following them

d. Resisting pressure to condone, ignore or commit unethical behaviour

e. Respecting diversity and acting fairly and inclusively

A2 Maintain the level of competence and legal knowledge needed to practise effectively, taking into account changes in their role and/or practice context and developments in the law, including:

a. Taking responsibility for personal learning and development

b. Reflecting on and learning from practice and learning from other people

c. Accurately evaluating their strengths and limitations in relation to the demands of their work

d. Maintaining an adequate and up-to-date understanding of relevant law, policy and practice

e. Adapting practice to address developments in the delivery of legal services

A3 Work within the limits of their competence and the supervision which they need, including:

a. Disclosing when work is beyond their personal capability

b. Recognising when they have made mistakes or are experiencing difficulties and taking appropriate action

c. Seeking and making effective use of feedback, guidance and support where needed

d. Knowing when to seek expert advice

A4 Draw on a sufficient detailed knowledge and understanding of their field(s) of work and role in order to practise effectively, including:

a. Identifying relevant legal principles

b. Applying legal principles to factual issues, so as to produce a solution which best addresses a client’s needs and reflects the client’s commercial or personal circumstances

c. Spotting issues that are outside their expertise and taking appropriate action, using both an awareness of a broad base of legal knowledge1(insofar as relevant to their practice area) and detailed knowledge of their practice area

A5 Apply understanding, critical thinking and analysis to solve problems, including:

a. Assessing information to identify key issues and risks

b. Recognising inconsistencies and gaps in information

c. Evaluating the quality and reliability of information

d. Using multiple sources of information to make effective judgements

e. Reaching reasoned decisions supported by relevant evidence

Ethics, Professionalism and Judgement: Reflect and Identify

When solicitors Reflect and Identify their learning and development needs with reference to Section A (above) they need to carefully consider the underlying skills sets which they need to develop to be competent in all areas within A1a-e, A2a-e, A3a-d, A4a-c, A5a-e.

This may not be easy to do as it is to state the need to do it. In some areas it will be straightforward e.g. 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 to be aware of these learning and development opportunities as they are unstructured aspects of working life (not a workshop, course or e-learning). 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.

Competencies set out, such as A2 (a-e) can be seen as ‘a given’. Every good solicitor should have the appropriate skills, undertake these tasks and be competent. Is this always the case?

For example reflecting on 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?

Arguably, the SRA Continuing Competence process anticipates that every solicitor will in fact behave in this ‘reflective’ way regarding each of the areas covered by the Statement of Solicitor Competence in its entirety.

Ethics, Professionalism and Judgement: Evaluate and Plan

A3 Work within the limits of their competence and the supervision which they need including…’ 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; then to 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.

Certainly professional indemnity insurers will be keen to know that solicitors in the insured’s firm have undertaken learning and development in claims avoidance and risk management etc. Being able to demonstrate and evidence that all of the firm’s solicitors (as well as other lawyers and business support team members) have been trained in these areas may lead to a reduction in the cost of cover, when it filters through to an improved claims record.

However, learning and development under the Continuing Competence regime is not about courses – it is about individual learning and development needs. ‘Putting solicitor X on a claims avoidance course’ will not always be the best plan.

L&D professionals and individual solicitors now need to think more broadly than courses, workshops and e-learning to identify and plan the most appropriate learning and development activities to address each individual’s learning and development needs. This all takes time, resources, effort and a willingness to adopt a new approach.

Ethics, Professionalism and Judgement: Address and Record

The most effective methodology to record the activities undertaken and create a suitable Development Record is to use a high-quality software solution. This will be one which collate and link all of the solicitor’s objectives and planned activities in an individual Development Plan. The software will also link the reflections, objectives and activities directly to the appropriate section in the Statement of Solicitor Competence (e.g. Section A: Ethics, professionalism and judgement) and each respective sub-section / paragraph (e.g. A3.d Maintaining an adequate and up-to-date understanding of relevant law, policy and practice’. By doing so the software will generate both a comprehensive and compliant Development Plan and Development Record.

Ethics, Professionalism And Judgement: Review and Declare

Where the Continuing Competence software is operating effectively, it will bring together each individual solicitor’s Development Plan together with their Development Record so that they can review the steps which they have taken to address the learning and development needs which they identified, add any ongoing needs and sign their Annual Declaration.

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 SRA’s requirements with regard to ethics, professionalism and judgement, then do please contact our team on 01444 240 124 or click here.