CPD – practical steps to complying with the new SRA training requirements
With just over a month to go until the Solicitors Regulation Authority’s (SRA) new approach to Continuing Professional Development (CPD) becomes compulsory for all solicitors, there still remains a lack of awareness among many within the profession as to what the new training proposals will and will not require and as to what solicitors need to do in order to achieve compliance.
Seen by the cynical as a charter to do nothing, the new competence-based approach to continuous training will apply to all solicitors from 1 November 2016. The most obvious impact of the new provisions will be that, instead of solicitors needing to undertake a minimum amount of CPD accredited training (currently 16 hours), they will now need to be able to show that the training they have undertaken contributes towards their ability to deliver a proper standard of service to clients (as required by Principle 5 of the SRA Handbook). But how will they achieve that and what, in reality, do firms need to do to ensure that their staff remain competent?
The Four Steps to Fulfilment
Just as Eddie Cochrane believed there were three steps to heaven, so the SRA believe that there are four steps to achieving your training goals. Those steps are:
- Reflect upon your practice and identify learning and development needs
- Plan the learning and development that you need to undertake
- Address those needs by undertaking “training”
- Record that which you have done and assess whether it has addressed the needs identified in 1.
Whilst these are duties that apply to individuals, nevertheless firms will also have an overarching responsibility to ensure that they deliver a proper standard of service to their clients by ensuring that staff are appropriately trained so as to maintain an adequate level of competence.
The SRA are keen to stress that the new regime is not be seen as “a soft option to learning and development”. They want individuals and firms alike to think seriously about whether they can meet their obligation to provide a proper standard of service which they can only do by identifying their strengths and weaknesses and by formulating a plan to build on strengths, address weaknesses and generally keep skills and knowledge up to date and relevant.
How that is achieved is up to the individual and the employer and will need to factor in a range of variables including the type of work undertaken, the experience of the person undertaking it, the nature of the practice, the understanding of the clients and the resources available – all of which we will come on to shortly.
Confucius said that there are three methods by which we may learn wisdom. The first, by reflection, is the noblest, the second, by imitation, is the easiest and third, by experience, is the bitterest. How sad then that of all the steps reflection is the one likely to be given the least attention.
The SRA place great emphasis on the need to reflect “as a means of creating opportunities to step back from your practice to consider:
- How you think you are performing
- What you think you have learned from your experience
- What you might do differently in the future.”
In other words, the opportunity to think creatively about what you do, how you do it and the benefit it delivers.
There is a strong argument for being as creative as possible when it comes to reflection. Reflection can, of course, be limited to what you currently do and the way in which you currently do it. Provided that you are able to address Principle 5 and the need to deliver a proper standard of service to clients, then that will probably be enough for the purposes of the SARA training requirement. Thus, you may in doing so ask yourself:
- What are my strengths and weaknesses?
- What could I have done better?
- How should I have done it?
- Would I have done better if I had better skills or knowledge, and if so in what areas?
- What level of skills and knowledge do I require? and
- What do I need to do to get to where I need to be?
However, that is a very narrow way of addressing your development. There are other questions you could be asking, including:
- Could I deliver more if I had skills in other areas?
- Would the firm benefit if I were able to undertaker a wider range of work?
- Would I work more effectively if the procedures and processes in the firm were different?
- Do I receive sufficient support from those around to perform to the best of my ability?
- Do I support those around me sufficiently to enable them to perform to the best of their ability?
Thus, reflection, rather than being the bit you get over and done with as quickly as possible, could become a vital part of the development of the firm.
But what is reflection? Whilst taking yourself into a darkened room, lighting incense sticks and chanting is one option, a more productive way of achieving reflection could be to identify specific areas of your work and to discuss them with a colleague or manager so as to obtain an objective view on how you are currently performing and what, if anything, you need to be doing to improve or develop. This may be done informally or through a more formal process such as appraisal. Indeed, common question in many staff appraisals already address questions related to reflection, including:
- What could you do to develop your knowledge and skills level?
- How effective has the training and development you have received this year been?
- How has the training and development you have received this year helped you in your role?
- What support do feel you require in your role?
Of course, you can really only reflect effectively upon what you could be doing if you know at the outset what it is that you should be doing. To assist you with this, you need to be aware of:
- what your firm requires of you
- what your clients require of you, and, more broadly
- what the SRA requires of you.
The first of these you should be able to get from a combination of your job description, the outcome of appraisals and less formal feedback from managers and colleagues. The second should come from client questionnaires, informal client feedback and client complaints (the last being an important way for firms to identify how services can be improved). The third comes not just from a reading of the regulations in general, but from the SRA Competence Statement which defines what a solicitor must be able to do to deliver a proper standard of service, and which the SRA expects solicitors to use when thinking about the training they need.
We shall look at the Competence Statement later.
The next step to achieving your training goals is that of planning, that is to say working out what in reality you should do in order to address the needs identified through reflection.
Planning what you should do is an important part of the process since it will enable you to prioritise those aspects that are most important and urgent and enable you to be able to schedule your development in such a way as to fit in with work and other commitments. Few busy practitioners will be able to undertake all of the training they require immediately and so a structured learning plan will need to be adopted.
Thus, to plan your training you will need to consider:
- what you need to do urgently,
- what can be allowed to wait,
- when you need to do the training,
- how you will undertake the process of being trained,
- what criteria you are going to apply to ascertain if the training has been successful.
For most of those undertaking this exercise planning is not going to be a solo activity. You will need to factor in what training the firm want you to do (for example in the form of firm-wide training covering topics such as money laundering, data protection, diversity or confidentiality). You will need to agree with the firm that they regard the training you have identified as relevant to your role. You will need to consider the financial and practical implications of undertaking the identified training – e.g. whether the firm afford for you to be trained on these topics – and whether you have the time to undertake the training.
By its very nature, planning implies that you will make some form of written record of what you are going to do – if only so that you can, at a later date, check that you have achieved that which you set out to do.
One way in which to achieve this would be to produce a simple development plan setting out:
- what you intend to do,
- when you intend to do it (possibly broken down into time slots such as quarterly or half yearly),
- why you intend to do it (e.g. how it will improve the service you are able to deliver),
- how you will judge whether it has succeeded.
Having produced the plan, it should then be reviewed on an ongoing basis both to ensure that you are achieving it and to make sure that it continues to address your current needs.
The next stage in the process is that of addressing the training which you have identified and planned.
Unlike the position that use to apply with CPD “hours”, under the new regime there is a far greater degree of flexibility as to what constitutes training and, provided that you can demonstrate that the method(s) you have chosen address your training needs are relevant and appropriate, then one method is not going to be regarded as being better than another. Thus, you can more easily tailor your training to your needs, availability and resources.
The types of activity that you may wish to consider as addressing your training needs include:
- Formal “bums-on-seats” training – this can take several forms including traditional lecture theatre style training provided by an external provider, formal in-house training using either an internal or external speaker or attendance at conferences.
- Video/CD based training – delivered either individually or to an audience of several people.
- Online training and webinars – again delivered either individually or to a group.
- Know-how sessions – where individuals within the firm who currently undertake an area of work show others within the firm what they do and how they do it.
- Seminars and group discussions – where someone with a skill or knowledge leads a discussion group looking at a particular topic.
- Learning sharing – where those who have attended formal training report back to others in the firm as to the points covered.
- Reading and research – from books, web sites, periodicals, cases or email updates. This may be backed up by “assigned” reading where individuals are required to read specific things and then demonstrate their understanding of the topic.
- File reviews – since a large part of the learning process is intended to address the quality of the work undertaken for clients, file reviews are an important way in which to identify shortcomings and to learn from colleagues and line managers.
- Informal or semi-formal discussions with colleagues and managers – can be particularly relevant in addressing issues unique to a particular type of work or the firm.
- Observation – a method used particularly by trainee solicitors, watching how more experienced colleagues deal with particular types of matter can be a very good way of acquiring hard skills as well as skills in how to manage clients.
- Mentoring and coaching – sitting alongside observation, mentoring and coaching is where an experienced person within a firm undertakes the role of developer of the skills of a less experienced colleague.
- Secondments – involves the person moving temporarily to another department either to see how the work of others might tie in with their own, to experience another department to see if it is appropriate to move to or simply to learn the techniques practiced by that department.
Recording and Evaluating
The final step is that of recording and evaluating the training undertaken.
There is very little purpose in undertaking training unless it addresses the needs of the person being trained. For that reason, it is vital that the training undertaken be evaluated. This can only be done if you have recorded what you have done, thought about the extent to which it has addressed the needs identified in your training plan and decided whether it was adequate or whether more is needed. This latter may not be something you can do – it may need an independent person such as a line manager or colleague with a greater experience of the area in question to look at what you have gained from the training.
Furthermore, evaluating your learning and development will help you to work out if there are further aspects to your development that you had not previously been aware of but which need to be addressed.
Clearly in the busy life of the average practitioner all of this reflection is not going to take place immediately after a course – it may need to happen as part of the appraisal process or it may form part of a more general overview that the individual takes as to what they are doing, the effectiveness of what they are doing and what they should be doing going forward. For this to happen, therefore, it is essential that some form of contemporaneous record of the development activities undertaken is made.
A development record does not have to be complicated. As long as it records what you did, when you did it, what it was intended to achieve and what it actually achieved, then you have probably recorded enough information. It may be useful for you to file with your training record any additional materials so that you can refer to them later. These could include:
- notes taken during a lecture, video or webinar
- handouts or follow up materials received following participation in a formal course
- copies of any journal articles, web pages or other reading matter
- copies of appraisal or meeting summaries, or
- emails containing suggestions from managers or colleagues
Having recorded and pondered you will need to reach some form of conclusion concerning your training undertaken. However, how you evaluate what you have done will depend upon the nature of the training, what it is was intended to achieve and the outcome of undertaking it. “Black letter” training on a technical aspect of the law will produce a far different outcome from management training on how a particular type of transaction is undertaken.
The questions you may need to think about include:
- Has it addressed any of your needs as identified in the training plan? If so, which?
- Has it failed to address the needs and if so, why and what further needs to be done?
- Has it revealed further weaknesses that you were unaware of?
- Has it revealed shortcomings in the way in which you interface with others?
- Are the processes or procedures that need to be improved as a result?
- Could the firm be doing more to support you?
- Are there areas you could be moving in to which would enhance the service you are able to offer to clients?
- Are there weaknesses in your legal knowledge?
Having thought this through individually you need to make sure that any conclusions that you reach are fed through into the management and appraisal process and that your conclusions fit in with the firms plans for you, your department and indeed the firm generally.
In addition to identifying those things that you or your firm feel are important and necessary for you and the firm to be able to deliver a service which complies with the requirements of Principle 5, you must also address those issues which have been judged to be fundamental by the SRA. These are to be found in the SRA Competence Statement.
Made up of three parts:
- a statement of solicitor competence,
- the threshold standard, and
- a statement of legal knowledge,
the competence statement defines the continuing competences that the SRA require from all solicitors and is an integral part of this new approach to training.
For these purposes, the SRA defines competence as being “the ability to perform the roles and tasks required by one’s job to the expected standard”. The SRA take the view that this definition “recognises that requirements and expectations change depending on job role and context ….. that competence develops, and that an individual may work ‘competently’ at many different levels, either at different stages of their career, or indeed from one day to the next depending on the nature of their work.”
The first part of the Competence Statement – the statement of solicitor competence – is broken down into four sections:
- Ethics, professionalism and judgement – that is to say
- Act honestly and with integrity, in accordance with legal and regulatory requirements and the SRA Handbook and Code of Conduct;
- Maintain the level of competence and legal knowledge needed to practise effectively, taking into account changes in role and/or practice context and developments in the law;
- Work within the limits of competence and the supervision needed;
- Draw on a sufficient detailed knowledge and understanding of field(s) of work and role in order to practise effectively; and
- Apply understanding, critical thinking and analysis to solve problems.
- Technical legal practice
- Obtain relevant facts
- Undertake legal research
- Develop and advise on relevant options, strategies and solutions
- Draft documents which are legally effective and accurately reflect the client’s instructions
- Undertake effective spoken and written advocacy
- Negotiate solutions to clients’ issues
- Plan, manage and progress legal cases and transactions
- Working with other people
- Communicate clearly and effectively, orally and in writing
- Establish and maintain effective and professional relations with clients
- Establish and maintain effective and professional relations with other people
- Managing themselves and their own work
- Initiate, plan, prioritise and manage work activities and projects to ensure that they are completed efficiently, on time and to an appropriate standard, both in relation to their own work and work that they lead or supervise
- Keep, use and maintain accurate, complete and clear records
- Apply good business practice
The SRA provide further guidance on how to achieve each of the above sections all of which will be found on the SRA web site – www.sra.org.uk/solicitors/competence-statement.page.
The second part of the competence statement is the Threshold Standard which was developed to be less generic than the Competence Statement and to set out the level at which the competences in the competence statement should be performed upon qualification as a solicitor. There are five levels to the statement with level three being the standard required at the point of qualification. Those five levels are:
- Recognises some of the standard legal issues relevant to the particular case or transaction area of practice
- Recognises some of the standard legal issues relevant to the area of practice, and begins to see how they apply to a particular case or transaction
- Identifies the legal principles relevant to the area of practice, and applies them appropriately and effectively to individual cases’.
- Applies a depth of understanding of the area of practice and a broad background awareness of legal principles to solve problems and progress the case.
- Uses mastery of the area of practice and a broad background awareness of legal principles to develop and critically evaluate a range of options to overcome dilemmas and problematic situations.
For more information on this go to the SRA web site – www.sra.org.uk/threshold/
The final part of the Competence Statement is the Statement of Legal Knowledge which sets out the knowledge that solicitors are required demonstrate at the point of qualification (and by implication a level below which a qualified solicitor should not drop.)
There are 13 areas that are covered:
- Ethics, professional conduct and regulation, including money laundering and solicitors accounts
- Wills and administration of estates
- Law of organisations
- Criminal law and evidence
- Criminal litigation
- Contract Law
- Trusts and equitable wrongs
- Constitutional law and EU law (including Human Rights)
- Legal system of England and Wales
- Civil litigation
Again further details will be found on the SRA web site – www.sra.org.uk/knowledge.
Having undertaken all of the reflecting, planning, addressing and recording, the solicitor is then under a duty to declare annually that they have done so.
The declaration, which is in the form “I have reflected on my practice and addressed any identified learning and development needs” will be made at practising certificate renewal time and will relate to the practising year up to that renewal. The SRA will monitor PCRE forms to identify those solicitors who have not confirmed that they have reflected on their practice and addressed identified learning and development needs and the information, in combination with other information held or received by the SRA about an individual or regulated entity, will be used to explore and concerns the SRA may have.
In summary, therefore, the new regime for training should, if it is adhered to properly and not ignored, ensure that solicitors and firms are more able to address the needs of clients in a relevant, comprehensive and effective way. It requires that individuals and firms alike provide a proper standard of service to the client n accordance with Principle 5 of the SRA Handbook, and in particular that they:
- Reflect on the quality of the practice by reference to the Competence Statement – in doing so identifying learning and development needs.
- Plan and address learning and development needs.
- Record and evaluate learning activity so as to be able to demonstrate to the SRA that steps have been taken to ensure ongoing competence.
- Make an annual declaration to confirm that this has been completed.