Ongoing competence roundtable, Newcastle 22 October 2019

On 22 October at Northumbria University, Newcastle, the Legal Services Board (LSB) held a roundtable discussion focused on how best to assure the ongoing competence of legal professionals throughout their careers. This is one of the LSB five year policy objectives and we have recently begun gathering evidence to help us better understand existing frameworks to assure competence and any gaps in the current system.

There were 27 attendees from a range of perspectives, including solicitors, barristers and judges, representatives for consumers, the court service and legal academics from a number of law schools. This resulted in a valuable discussion that covered a range of issues.

Below we set out some of the comments that were made by those who attended on the day, from a series of group discussions. These comments will feed into our thinking for this project, and be taken in conjunction with feedback from other stakeholders throughout our engagement in the coming months.

Further information on our work in this area can be found on our website.

Competency in the legal services sector

Participants told us that they thought:

  • Not enough is known about the competency of professionals and the quality of supervision varies greatly across lawyers, firms and specialities.
  • Competence in the legal sector is often assumed through a lack of complaints (and/or maintained billing hours), which has limitations.
  • The current system has a high reliance on lawyers being responsible for their own training and there are limits to how well people can self-assess their own competence.
  • Competence is particularly important for vulnerable consumers and those who access legal services in one off situations, where risks may be higher.
  • Legal service professionals should be keeping up with changes to the law, processes and technology changes.
  • Regulators need to be more hands-on given the shift to personal assessment of CPD needs, and also need to gain competence assurance from firms.
  • Despite the new outcomes-focussed CPD requirements, some firms maintain the prescriptive 16 hours requirement internally as it has value in tracking and ensuring some CPD is done, even if it can’t be quality assured.
  • The competitive nature of legal practice and varying size of firms sets it apart from other regulated professional industries like medicine or teaching.

Experiences of potential areas of higher risk

Participants told us that they thought:

  • There are significant issues with the quality of some advocacy, and judges have very limited means of addressing this.
  • The absence of any grading of advocates (beyond the distinction between juniors and silks) can create challenges as there is little to prevent people from taking on work beyond their competence.
  • There could be more risks to a person’s competency towards the end of their career or following a long period of absence, or in areas of law with an inherent public interest or consumer risk, such as youth advocacy or conveyancing.
  • Communication is a key skill for legal service providers. Often it is the way advice is delivered that can lead to complaints, and not the technical knowledge.
  • Business skills are also important for lawyers who are involved in running legal businesses. This is not always accepted and education and training does not generally cover this in much depth.
  • Self-assessment of competence relies on the professionalism and culture to comply with the code of conduct. This can be problematic, as some people can find it tough to self-identify areas of weakness which can be perceived to limit careers.
  • The size and scale of law firms greatly affects their ability to absorb professional development into work and training. Large firms often have structures or training schemes that ensure ongoing learning, but medium/small firms or sole practitioners may lack resources to invest in learning and development.
  • Often those who are motivated to seek appropriate training demonstrate a high level of competency, compared to others who don’t actively seek training.

Tools for assuring ongoing competence

Participants told us that they thought:

  •  A range of tools is needed to demonstrate competence over a person’s career.
  • Client feedback is useful, but needs to be considered as part of competence assuring evidence. There are instances when competent advice from a lawyer to a client may not be positively received.
  • Regulators need to be able to act at an earlier stage, to support learning and remedial action, rather than just using after the event enforcement action.
  • Feedback from mentors/supervisors and colleagues should be focused on to identify and fulfil training needs. Observation and assessment would also be useful as part of assuring competence (although competence should not be assured on single pieces of evidence).
  • Ways for judges to provide feedback on advocacy quality should be considered. For example, judges are accustomed to completing forms after a meeting on case progression. This format could be extended as a means of providing feedback regularly and efficiently.
  • There are already models being used for in-court assessments of advocacy quality. There would be real value in developing an evidence base on the effectiveness of such interventions in assuring competence.
  • Some firms and providers carry out audits of case work (advocacy, case progression, case analysis) alongside observation and feedback.
  • It might be useful to have different competency at different levels of legal service providers, ie participants asked what level of competence should be expected from partners compared to junior staff?
  • Some programmes like the Lexcel accreditation for legal aid are taken seriously, as the standards are audited and ongoing.

Challenges to assuring ongoing competence

Participants told us that they thought:

  • The amount of legal disciplines and difference of legal work across the sector will make it challenging to find an approach that can be adopted and applied to all registered lawyers, while retaining valuing in assuring competence for consumers and the public.
  • There could be a role for universities or training bodies to play in promoting lifelong learning throughout students’ legal careers. Consideration should be given to how to instil self motivation in lawyers to stay competent throughout their career.
  • Lawyers can feel uncomfortable reporting on the competence of their opponents, and there are concerns that it could create a culture of over reporting concerns. Similarly judges feel more comfortable offering informal feedback but may be less willing to do so formally.
  • Softer skills are more difficult to assess and capture, but also are an important competency in themselves.
  • The SRA’s proposed SQE may have an impact on technical competence by removing the law degree requirement.

This entry was posted in News