By Margie McCrone, Regulatory Policy Manager at the Legal Services Board
The Legal Services Board (LSB’s) work on ongoing competence is central to the regulatory objective to protect and promote the interests of consumers. Consumers should be able to trust that legal professionals have the necessary and up to date skills, knowledge and attributes to provide good quality legal services.
During our call for evidence in 2020, which identified ongoing competence measures used in legal services and other professional sectors in England and Wales, stakeholders told us it would be useful to know what approaches have been adopted in other jurisdictions. We commissioned Hook Tangaza to carry out research in this area.
From the report, we have identified some models in jurisdictions taking a first-principles approach to assuring ongoing competence, thinking about what they are trying to achieve and why. As a result, these jurisdictions are increasingly attentive to the regulation of legal professionals beyond the point of qualification i.e. in-practice regulation.
In-practice regulation has historically been overlooked around the world, while ensuring ongoing competence has not been prioritised or linked to a wider understanding of what competence looks like in a practising legal professional. This is out of step with consumer expectations of competence and the robust checks they assume are in place throughout legal professionals’ careers.
Below we set out some of the emerging models targeting in-practice regulation identified in Hook Tangaza’s report:
In 2020, the Netherlands Bar introduced new rules requiring all advocates to undergo an annual assessment of their competence. This can take the form of either a peer review (undertaking case file reviews) or expert-led discussions with peers on ethics or professionalism. This is an opportunity for advocates to discuss learning points from the successes and challenges faced in their work with peers and colleagues.
The Faculty of Advocates in Scotland has a Quality Assurance Scheme to assess the competence of members of the Bar. Since it began in 2016, 20 per cent of advocates have undergone a competence check, which includes an oral advocacy exercise focused on an individual’s practice area, which is reviewed by trained senior advocates. Workshops are provided to reinforce and develop advocacy skills in advance of the assessments. Although it has yet to be formally evaluated, the Hook Tangaza report says that it appears to have been effective in engaging the profession in refreshing and upgrading its skills, focusing attention on those in most need of improvement.
The Law Society of Alberta in Canada has introduced a resolution and early intervention process, which takes place when a complaint about a legal professional is not sufficient to trigger a sanction but warrants some other type of intervention. The Early Intervention Counsel reviews the complaint and considers how the individual’s practice could be improved, including through education and guidance as is needed. This offers an opportunity for remediation rather than simply punishment. On a similar vein, in Australia, rehabilitative sanctions can be ordered that address concerns about competence, including requirements to undertake further legal education (New South Wales) or be placed under supervision (Victoria).
Following a 2020 review, the Law Society of Alberta said it will periodically supplement continuing professional development (CPD) with mandatory activities and initiatives designed to address competence in areas relevant to all lawyers. These could include, for example, professional conduct, cultural competence and access to justice.
A 2020 review of CPD by the Victorian Legal Services Board + Commissioner in Australia led to 28 recommendations for improvements. These included developing a competence framework for legal professionals, actively promoting self-reflection, and CPD activities on topics such as ethics, diversity and inclusion and use of technology. Self-reflection has also been a priority for the Netherlands Bar, which has introduced a CPD self-reflection tool. This takes advocates through a process to assess metrics of expertise, interaction and attitude to identify strengths and weaknesses in their practice, and ultimately, encourages them to reflect on their competence.
Next steps for the LSB
The models from Alberta, the Netherlands, Australia and Scotland, in particular, will inform our work on how legal regulators should monitor and assure ongoing competence in England and Wales. We will also take account of the exciting and ground-breaking consumer research that we plan to publish soon. Through our partnership with Community Research and our Public Panel, we carried out qualitative and quantitative research to understand the public’s views on whether the current arrangements give them sufficient confidence in the ongoing competence of legal professionals. We also tested a mix of measures that are used in legal services and other professional sectors in the UK to assess whether any would support consumer and public confidence.
In the coming months, we will be working more closely with regulators and others to discuss what the research and evidence tells us. This includes exploring our emerging conclusions from the call for evidence that regulators should:
- set out expectations of competence for legal professionals at the point of entry and throughout their careers;
- have mechanisms in place to identify and address competence concerns; and
- identify areas where increased risks to consumers may warrant a more targeted approach.
In the meantime, if you would like to find out more, please contact firstname.lastname@example.org.