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By Nicola Jones, a director of Athena Professional and a specialist in legal training and development.
What prompted the proposed reform to CPD regulation?
Following the Legal Services Act 2007, the Legal Education and Training Review (LETR) was established in 2011 to conduct a root and branch review of all kinds of legal education. The process was supported by the three main regulators, the SRA, the Bar Standards Board and CILEX. The LETR published its final report in June 2013.
Weaknesses in the existing approach to CPD provision were identified. In particular, the “minimum hours” approach to CPD was found wanting. The travesty of lawyers attending irrelevant CPD events just to clock up hours and “tick boxes” struck a chord. The LETR did not propose a specific model for CPD, although it is clear that reform was anticipated. However, LETR Recommendation 17 states that models of CPD should be founded on a planned approach to learning and reflection. It also recommends that, whatever changes are implemented, CPD planning and performance should be robustly monitored by regulatory bodies.
Following the LETR report, the SRA issued its “Training for Tomorrow” (TfT) policy in October 2013. The initiative included roadshows around the country. One of the elements of the TfT policy is CPD reform. An open consultation on three options for CPD reform concluded on 2 April 2014. The rationale for reforming CPD given in the introduction to the consultation document includes criticism of the exiting regime on the grounds that it:
The SRA’s approach to CPD reform is about moving away from an “in-put” model towards an “out-puts” model. The SRA Handbook Principle 5 states that lawyers must be able to offer a “proper standard of service” to clients (ie they must be competent to practice). It is this outcome which is now the focus of CPD, rather than the means by which it is achieved.
What is the current state of the initiative?
The outcome of the consultation process is promised shortly. The advertised plan was to put proposals to the SRA board in June 2014, with the outcome going the Legal Services Board in July 2014. The stated intention was to have reform in place by the end of this CPD year (31 October 2014). The consultation outcome document will include next steps and it remains to be seen whether the original timescale is still on track.
The SRA has put forward three options for reform:
Option 1: Mandatory hours go – firms declare their lawyers competent to deliver legal services and staff are trained and supervised.
Option 2: Mandatory hours go and are replaced by regulations requiring lawyers to plan, record and reflect on learning.
Option 3: Mandatory CPD hours are reduced with a requirement that they relate to the individual’s area of practice – a wider range of learning is recognised.
Under option 1, accountability for compliance would rest with the regulated entity and the individual lawyer. The SRA is currently consulting on a “statement of competence" which it plans to publish, along with guidance on achieving competence, later in the year. For option 2 and 3 it is proposed that the regulated entity alone would be accountable.
How would these affect firms and what are their benefits/pitfalls?
This is the SRA’s preferred option. It fits with an outcomes-focused approach and with the light-touch regulation agenda. Guidance will be published to support this option if it is preferred. The consultation document states that the SRA will “hold entities and individuals to account for ensuring the competence of the services they provide”. Allegations of incompetence would be supported by an absence of evidence about a planned approach to training and supervision.
Option 1 will leave the form and content of CPD to individual lawyers and their employers. This option grants a free hand to the profession. This causes concern in some quarters. The LSB consumer panel’s response to the consultation does not support option 1, citing concerns over accountability and quality assurance. Likewise, CILEX raise concerns that:
“Passing responsibility entirely to the entity may not be the best approach to maintain the competence of individual solicitors, as there may be a temptation on occasion to cut corners with on-going learning and development when resources are limited.”
CILEX also suggest that reactive enforcement, rather than a proactive requirement to demonstrate learning activity, would not put this approach to CPD on a firm footing.
These reservations seem to be pragmatic, but I think they are dangerous. True, the reality is that many firms do not have the internal capacity to guarantee competence through the provision of high quality learning and development, but to reject option 1 on that basis is to pander to a weakness. In my opinion, it would play into the hands of those who undervalue legal services.
Option 1 is clearly the most progressive option, because aligning CPD provision with business need is common sense. Competence should be a baseline – not the whole story. Highly educated people, working in a competitive market, would be fool-hardy if they did not equip themselves to deliver the best service possible.
In order to shrug off a reductive CPD-hours approach the case for the business value of learning needs to be made loud and clear. There needs to be scope for flare and imagination to be used in the design and delivery of CPD which is tailored to individual needs. Cutting-edge learning practice puts the learner in the driving seat, deciding what they need to learn and choosing how to meet those needs. Technology makes this a possibility. Option 1 would allow for this kind of confident approach to sustaining excellence.
Mandatory hours go and are replaced by regulations requiring lawyers to plan, record and reflect on learning.
The LSB consumer panel and CILEX prefer this option. It satisfies a need for caution by requiring a particular approach to learning to be observed and evidenced. My concern is that it will render learning and development a bureaucratic headache, which will be deeply resented. I am particularly opposed to the idea of mandatory reflection. If reflection is not self-motivated it is probably a waste of time. Wasting time is anathema to all lawyers. It would be a terrible shame to negate the value of a developmental process by identifying it with compliance procedure. I also believe that option 2 runs the risk of putting a mask of respectability on CPD activities which may not serve legal businesses well. This is an opportunity for law firms to have a good hard think about why they invest in CPD. The scope for innovation through learning will be reduced by what may be interpreted as a different type of tick box approach.
There is agreement across the board that this is the least desirable of the options. It is a reduced version of existing practice – a license to tick boxes. Some lawyers have suggested that this option is the only one which really guarantees that firms will be obliged to provide some sort of CPD provision. Again, building reform on weakness is not a recipe for positive change.
How can lawyers prepare for the prospective changes ahead (especially given that they may not have much time in which to alter procedures and programmes)?
Firstly, lawyers and law firms need to understand the real business value of learning. It is not just about compliance, nor is it only about technical competence. Learning is at the heart of the kinds of activity that law firms have to embrace to survive for example, collaborative working, creativity and innovation. It helps make businesses agile, able to adapt and ready for change. And it is about walking the walk when it comes to the firm’s ethos. It is easy to say you value your people, but if you do not invest in their development, that is a pretty hollow assertion.
Firms need to make sure that they have these basics in place:
• a learning and development strategy which aligns with business strategy;
• a planned approach to departmental and organisational development;
• realistic job descriptions;
• competencies describing the types of behaviour which make good practice;
• meaningful personal development plans;
• robust performance management;
• organisational buy-in to development, particularly from heads of department and other line managers—the success or failure of learning is determined by whether it is embraced day-to-day in the workplace;
• metrics identified so that the impact of learning and development can be gauged.
By bringing together process and purpose, learning and development can help establish a virtuous spiral of development, which can bring a host of benefits including adding to the bottom line.
Interviewed by Diana Bentley
The views expressed by News Analysis interviewees are not necessarily those of the proprietor.
First published on Lexis®PSL Commercial on 12 May 2014.
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