Our work to date: Ongoing competence

LSB policy objective: Regulators have appropriate frameworks for continuing assurance of professional competence throughout the careers of the people they regulate

Why have we committed to this policy objective?

This project goes to the heart of the LSB ambition to reshape the legal services sector to better meet society’s needs and to provide consumers with fairer outcomes, stronger confidence and better services. Consumers should be able to trust that legal professionals have the necessary skills, knowledge and attributes to provide good quality legal services and that they are kept up to date and relevant over time.

Reforms to education and training up to now have largely focused on assuring day one competence, but regulators should also ensure that legal professionals remain competent throughout their careers. While consumers can usually observe ‘service quality’ e.g. promptness, courtesy, administrative efficiency, often they are not able to assess the technical quality of work. This means they rely on there being checks in place to provide quality assurance. And unlike other professional service sectors e.g. healthcare and teaching, there is no regular, formal assessment of legal professionals during their careers beyond requirements for continuing professional development.

The LSB Board determined that we should consider whether this status quo is sustainable and if the current approach is effective in protecting consumers’ and the public interest.

What have we done so far?

In January 2020 we launched a call for evidence to help us understand current approaches to assuring competence and gain clarity on whether there are any gaps in the system or areas of concern that need to be addressed. We had extensive discussions with stakeholders across and outside the legal services sector and received 31 formal submissions by July 2020, in addition to other datasets and research shared with us or sourced through LSB desk research.

We published our summary of evidence and identification of emerging themes in February 2021.

We also commissioned two research projects to support our evidence gathering. This includes:

  • an independent report into the approaches to ongoing competence assurance adopted in other legal jurisdictions that was prepared by Hook Tangaza following a competitive tender; and
  • work with the LSB Public Panel to test some of the findings from the call for evidence with consumers and understand if they have confidence in the current measures for ensuring ongoing competence.

Our research and evidence shows that the current ongoing competence measures are out of step with consumers’ expectations of ongoing checks for legal professionals and with the more robust approaches adopted in some other regulated sectors. There are also some novel approaches being adopted in other jurisdictions that we should take note of.

What comes next?

Our emerging view is that regulators need to do more to understand levels of competence and to demonstrate that their approach to regulation is informed by this understanding. This is the starting point for the expectations we intend to develop and consult on in December 2021. Our current thinking is that we will set high-level expectations that regulators should:

  • Set the standards of competence that professionals should meet at the point of entry and throughout their careers.
  • Assess profession-wide levels of competence, identifying areas of risk and designing upstream interventions.
  • Take suitable remedial action where standards of competence are not met.