CPD changes – opportunity or charter for cutbacks?
Following a consultation with the profession in February of this year, the SRA have, to the surprise and no doubt disappointment of many in the training sector, decided to revoke the current CPD scheme and rely instead on existing provisions in the Handbook requiring a proper standard of legal practice and of training and supervision.
So where does this leave firms in relation to their training and what will be the impact upon them in the future?
The consultation contained three possible ways forward for the SRA:
- revoking the current CPD scheme and relying instead on a solicitors duty to maintain a proper standard of legal practice, training and supervision;
- replacing the current CPD scheme with a new mandatory requirement to identify and record training needs but abolishing a specified number of compulsory hours;
- retaining a requirement to do a minimum number of CPD hours but requiring that training to be more relevant and to recognise development activity.
Many within the training industry believed that the SRA would opt for the second option, and the SRA have themselves admitted in an interview carried out by the Solicitors Journal, that the balance of opinion was in favour of an hours-based approach. Notwithstanding this, the SRA have decided to opt for the more flexible approach – one which focuses less on a set number of training hours (previously 16 hours per year) and more on that which is actually learned.
How the new system will differ
The SRA have said that they want to put learning at the heart of the new system. Thus, they want to get rid of what they see as an anomalous situation where someone can sit through the requisite number of hours of training courses without learning anything new and satisfy the requirements of the system, whilst someone who sits at their desk and does hours of relevant research and learning gets little or no recognition for that.
Legal practice and technology are both changing and moving forward. The SRA have indicated that they want to adapt the ways in which those in legal practice learn so as to address those changes. Under the new system, solicitors will be able to decide what learning most suits their own development needs and firms will be able to set firm-wide objectives – putting competence at the heart of the training that solicitors and other staff receive.
Moreover, it is not just competency to undertake particular work that will be relevant. Individuals and firms are going to need to look at their own roles and the those of others within the practice, decide what is needed now and what will be needed if changes occur within that role or if they take on new or amended management or administrative responsibilities. Thus, factors surrounding someone becoming a partner or someone taking over a new responsibility within the firm would be equally as valid a driver for training as the need to be able to deliver client services.
Firms are, therefore, going to need to think about new systems for ascertaining training needs and for delivering appropriate training – they are going to have to recognise that competence to undertake a specific task is more important than simply attending training.
The SRA plans to phase in full introduction of the system by November 2016. However, those firms who want to move to a new competence based system before then will be able to opt to do so from Spring 2015. Until the new regime takes effect, however, the existing system will continue and solicitors will need to be able to confirm that they have undertaken the requisite number of hours of training.
What is meant by competence?
Of course, all of this depends upon firms and individual solicitors understanding what is meant by competence and knowing what is seen as competent behaviour.
To address this, the SRA is undertaking a piece of work which will produce a competence statement – to be published in Spring 2015 – and there will be a “competency toolkit” to give guidance to firms as to how to ascertain what training is needed, how the work of individuals fits within the plan and which will also help firms by providing details of the resources that are and will be available. According to Julie Brennan, director of education and training at the Solicitors Regulation Authority, in an interview given to Legal Futures (www.legalfutures.co.uk/blog/ditching-hours) this will comprise:
- the new competence statement for solicitors, which will explain what all solicitors need to be able to do competently;
- guidance on how to reflect on your work and identify training needs;
- information about the range of ways in which training needs may be addressed;
- suggestions about how to record and reflect on training undertaken;
- information about tools that are available to help with this process; and
- examples of good practice.
What of incentives and threats?
With any system that allows firms to set their own processes and goals, there is always the danger that there will be those who will not comply. Inevitably, as there are now, there will be firms who will continue to regard training as an avoidable expense and, it could be argued, by removing the need for an easily verifiable time requirement, it will be so much easier for firms to avoid, ignore or get around the provisions.
The view that the SRA take is that firms who do not put in place processes and procedures for ensuring competency will simply cease to be competent and will thus be at risk of some form of regulatory interaction with the SRA. Thus, if a firm becomes subject to an investigation, or is before the Solicitors Disciplinary Tribunal, and it becomes apparent that the firm has not paid proper attention to training, then this will be seen as an aggravating factor in that investigation or those proceedings.
Furthermore, failing to undertake training could impact on the quality of the work done – and hence introduce problems of client satisfaction – and could ultimately lead to the firm being negligent. Therefore, the SRA take the view that market forces and client attitudes, as well as good business sense, should act as a driver for this process.
That will undoubtedly be seen by many as a naive view to take – effectively an abnegation of responsibility. Indeed there are probably many firms where the nature of the work they do and the clients whom they represent will mean that there are few, if any, ramifications arising from not undertaking training. If the SRA’s analysis of the need for firms to be forward thinking, however, is correct, the possibly market forces will ensure that those firms are short lived. In any event, it is highly likely that those firms will do no more and no less training under the new regime than they currently do under the existing one.
So what would the SRA be looking for in terms of compliance with the regime?
Essentially, they will be looking for systems and processes. They will be looking for procedures that analyse and help determine what are the competencies for the various roles within the firm. They will be looking for ways for ensuring that those who are undertaking those roles are competent and that they have been provided with training that is relevant to their needs and the level at which they operate. There will also need to be systems which monitor that competence on an ongoing basis and which identifies when and where further training, guidance, research and updating is required.
However, and it is an important point to note, as things currently stand the SRA is not expecting firms to have formal training logs or formal development plans for individuals within the firm. Thus those within the firm can record their training in as informal a way as they wish.
The SRA want those in solicitors practice to be able to learn in a way that fits in with their lifestyles, their jobs, their time resources and indeed their client pressures.
The corollary to this is, of course, that if individuals can learn in a manner which suits them and they do not have to record formally that which they have learned, then the need for accredited training will disappear. For that reason the SRA plans to phase out accreditation of training providers.
Another option which existed for the SRA was to place a specific duty upon the Compliance Officer for Legal Practice (COLP) to ensure that the firm had a training plan in place and that it was addressing the competencies within the firm. The SRA have, however, taken the view that there is already a duty upon the COLP to ensure that the firm maintains a “proper standard of legal practice, training and supervision” and so for that reason, no new duties have been imposed.
Problems in practice
All new systems for dealing with aspects of management of a law firm need time to bed in – often there needs to be a culture change and those involved have to see how the new systems and procedures fits in with that which they do. That will no doubt be the case here as much as it has been in relation to any other aspect of outcomes-focused regulation.
However, this is very much an area which is currently observed mainly in the breach. Therefore, by lowering the objective standards by which it is judged, many will feel that the SRA is simply doing what it has done, or wishes to do, in so many other areas – namely removing the need for there to be any active involvement on their part in maintaining standards and passing that duty down to individual firms accompanied by the general threat of a sanction if it is not done adequately.
That this must be the case is borne out by the fact that the SRA have down-played the importance of training records. This, in a sense, creates an unresolved dichotomy.
On the one hand the SRA are stating that firms need to have procedures and policies which address development, training and competency needs. On the other hand they are also stating that they do not expect formal records to be kept. That begs the question as to how a firm is to know whether needs are being addressed if they do not record keep, monitor and compare that which happens with that which should have happened and test competencies against training plans.
Another problem which arises is that of knowing which training is good training which fits the needs of the firm. If, as the SRA says it plans to do, accredited training is to be phased out, how are firms going to know which training courses are valid? Granted that under the current system not all training is good training and most people will have been on at least one course that promised much but delivered little. However, the system by which training firms become accredited does impose some measure of competency and quality upon the trainers – requiring them to pay to register with the SRA, to submit course outlines and so forth. Once it is a free for all, how is the firm to know that a given trainer has any qualification or that the courses they provide are going to meet even the most basic of standards?
Finally, what do firms need to do? It is probably a little early to give specific guidance – and firms should be aware of the content of the further consultation on competency and the contents of the toolkit as and when each is produced.
However, in the interim, firms should think about whether they already have a system for defining competencies and ascertaining training requirements that would fit the new requirements of the SRA and, where they have not, look at implementing procedures within the firm to take account of this.
Finally, how does this leave individual solicitors? Are they empowered by it or has it simply taken away what little chance they ever had of compelling employers to provide them with the training which they need to advance their careers and undertake the roles within the firm in a competent and effective way? Only time will tell. The danger, however, for each and every one of them is that if the firm they are with does not make the necessary provisions and they do not take steps to alert the SRA to the fact that those provisions are not being made, then it is feasible that they may be in breach of the duties to which they are subject.
Inevitably there will be firms who see these proposals as a sort of “Get Out of Jail Free” training card – an opportunity to cut back yet further on the training they do and the support they provide.
However, for the firm that does want to move forward, that wishes to improve the way in which it delivers client services and wants to ensure that the people within the firm are competent in real way – then it is an opportunity to put in place systems which are relevant, modern and which take account of the needs of those within the firm.
If the ideal training is delivered by someone who is not a SRA accredited trainer – then this no longer matters.
If the skill set is in relation, for example, to a technological skill rather than a legal one – then that can be part of a relevant training plan.
If an individual within the firm learns more effectively by undertaking personal research or by reading books rather than by sitting in training courses – then there is no reason why that individual cannot do so under the new regime.
In other words – for forward thinking firms they have been released from the 16 hour yoke and given the opportunity to be relevant, innovative and effective in the training that they provide.