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SRA reform of the CPD system for solicitors
Practical Law UK Articles 8-572-0745 (Approx. 7 pages)
SRA reform of the CPD system for solicitors
| Published on 01 Jul 2014 • England, Wales |
In May 2014 the SRA announced the outcome of its consultation on the reform of the continuing education regime for solicitors. It proposes a new system without minimum CPD hours, and with a wider range of qualifying training. This article examines the proposals and their potential effect. (Free access.)
SRA proposals
On 21 May 2014 the SRA Board adopted its recommended plan for the reform of the CPD system that has governed the continuing education requirements for solicitors since 1985. The new plan contains radical changes. Solicitors will now have complete control over how much training they do (including doing none) and can gain new knowledge in any way that suits them. Gone will be the days of a minimum of 16 hours CPD and a restricted list of qualifying training activities.
Under the new plan, all that will be required is for a solicitor to:
- Tick the annual CPD declaration on the application to renew their Practising Certificate, confirming that they have a system in place to ensure continuing competence; and
- Satisfy the SRA, should they investigate his or her practice for some reason, that the solicitor has considered how to remain competent and can demonstrate ways in which this has been achieved. At its most extreme, if the SRA has no reason to investigate, because there are no complaints about client service or competence, a solicitor could decide they need no formal continuing education and training at all, but will rely on updating through practice.
Hand in hand with this is the abolition, from 1 November 2014, of SRA approval (accreditation) of training providers and their courses. Consumers (solicitors who buy this training) must then decide for themselves whether the product hits the mark, and the presenter is competent.
Whilst this new plan has still to be approved by the Legal Services Board (which is unlikely to prove contentious) and will not all be in force until November 2016, it is important to understand its implications now, not least because firms can choose to be early adopters from February 2015.
On 29 May 2014, the SRA released the headline findings of research they commissioned into the way training and education is embedded in firms (both small and large) and ABS. They draw comfort from this research that the new plan will be capable of delivery so long as there is clear guidance from the SRA and a change of mindset in the profession.
What is the motivation behind the new plan?
Focus on competence
The SRA claims that its main aim is to ensure that solicitors are competent, and give them freedom to decide how best to achieve this. This is consistent with its move to “outcomes focused” regulation. The SRA wants to move away from an arbitrary 16 hour rule, which they feel has become a tick box exercise, with solicitors cramming in any old training towards the end of the CPD year, just to meet the target. They suggest that the changes will also reduce regulation and (by implication) cost for the individual solicitor, which is good for competition and business flexibility, but without losing the overall public priority of ensuring competent legal services.
Implementing the LETR
Interestingly, the SRA's new plan bears only some of the hallmarks of the revised CPD system recommended by the Legal Education and Training Review (LETR) in June 2013. That was a joint report by the SRA, the Bar Standards Board and the Institute of Legal Executives Professional Standards and was nearly 3 years in gestation. The relevant parts are Chapter 5 (paras 5.32 onwards), Chapter 6 (paras 6.60 onwards) and Recommendations 17 and 18. LETR decided that any new approach to CPD should offer flexibility and relevance and need not prescribe a minimum number of hours. The SRA plan reflects all this but appears to diverge from other LETR recommendations that:
- CPD models should require participants to plan, implement, evaluate and reflect annually on their training needs and what they have learned.
- If there were no minimum hours requirement, there must be a robust approach to monitoring planning and performance and all CPD activity should be recorded. This could be delegated to the employing entity where there is one but otherwise must be done by the regulator. The monitoring should also be audited (a process involving the individual solicitor, his or her entity and the regulator).
- CPD schemes should not enable practitioners substantially to satisfy their CPD obligations by reference to unstructured informal learning. At very least, there should be demonstrable reflection on what has been learned and why it was relevant.
Possibly these gaps will be closed by the SRA guidance (see Reduced investment in training).
Reducing SRA costs
There is another aim behind the SRA plan; one which the SRA are not so keen to articulate on paper but which their representatives at the T4T roadshows confirmed was relevant. The SRA needs to cut costs. By abolishing the accreditation regime, the spot checking of CPD logs, and the need to check that the box on the practising certificate renewal form relating to CPD compliance has been ticked (which they initially intended to scrap but have since agreed to retain), the SRA will save time and money. They believe this is in the interest of the profession because it helps to keep the practising fee down, and leaves SRA resource to focus on those firms or individuals who are not providing competent services.
What are the advantages of the new plan?
Flexibility and relevance
The freedom for every solicitor or firm to decide what training to do, how to do it and when it is necessary will be liberating. The most useful part of the new plan is the recognition that there are many different ways to absorb new law, refresh understanding of topics not looked at for years, and develop new thinking. So individuals will be able to fit their training in at convenient moments. They can include reading, listening to podcasts on the train or watching a webinar in bed. Thankfully there will no longer be any need for live streaming, quizzes or interactive question sessions for the time spent to count towards the total CPD hours.
This opens up the possibility that reading and researching into a topic for the purposes of a new matter will count towards continuing education. So will sharing that knowledge with other lawyers in a firm – something that the larger organisations do regularly, perhaps by convening a lunchtime meeting at which a partner or senior associate explains the complexities of a deal and how these were solved, covering the relevant legislation and drawing out the practical significance of the points. For those firms which preserve the old-school approach of a junior lawyer working in double harness with someone more senior, this on-the-job training on new points can be counted towards the total.
Cost reduction for practitioners
For those keen to economise on the cost of training, it will not be necessary for any training to be done face to face (contrast the 4 hours required currently). So the days of sending busy partners and senior associates in October on any conference within striking distance, just to earn the points, will be over. Firms which can organise themselves to deliver in house training, or leverage existing online knowhow services to which they subscribe, can use these to keep their employees competent. For example, Practical Law updates on new cases, practice notes on new legislation, or drafting notes to standard precedents, can form the basis for group discussion, tailoring it to the particular firm’s practice.
Improved tailoring
The other advantage is that the training can be tailored to what the particular solicitor does. If they have a repetitive role of limited scope, the SRA conceded (at the T4T London roadshow) that they will not need much, if any, training. If their remit is wider, they may benefit from a much broader range of training topics but in less depth. It is for them (or their firm) to work out what will keep them competent and to make sure that this need is met by some means. For some, training on management skills, or business skills will be ideally suited (something which would not have necessarily qualified under the existing CPD system).
What are the potential disadvantages of the new plan?
Public perception
The most potentially damaging is the public perception of the move away from any minimum expectation of continuing education. There is a strong possibility that the public will compare this laissez faire attitude unfavourably when contrasted with the standards imposed by the professional membership bodies of the other professionals with whom they come into contact, such as doctors, dentists, accountants and HR professionals. All of these impose a minimum period of continuing education each year, designed to keep the public safe from incompetence.
Interestingly, as yet there has been no public outcry about this, perhaps because the full detail of the plan has yet to emerge; perhaps because the implementation date is still eighteen months away. The SRA has recognised that considerable concern was expressed on this point in the responses to the consultation on the plan. However, it believes that a charm offensive (in their words a “comprehensive stakeholder engagement strategy”) can persuade the public that the new plan protects their interests better than the old, so they should be content.
Relative improvement from a poor base does not inevitably equate to adequate protection. It is legitimate to ask how the intervention of the SRA after a solicitor has handled a matter incompetently, due to fossilised knowledge, is protecting the public. It may prevent future customers from similarly incompetent services from that particular lawyer, but does nothing to avoid the problem at the start. Further, ex-post-facto intervention does nothing to improve the service from the other solicitors who may be delivering incompetent services due to lack of up-to-date knowledge, but whose clients have not yet seen fit to complain to the SRA.
Increased reflection and record keeping
For firms (and individuals) it will, in practice, be necessary to keep reasonable records of any training or knowledge gathering activities undertaken, and an assessment of why they were necessary and what relevant skills were developed as a result. The new plan will not prescribe any particular type of reflective planning or assessment (unlike the LETR proposal) but the SRA guidance (see Reduced investment in training) is certainly likely to recommend something like this as best practice.
How many solicitors will find time to do this? The SRA research suggests that most firms already require their staff to record their CPD activities, and they draw comfort from this figure. However, there may be a significant difference between being required to record and actually doing so, let alone reflecting on what the training achieved or how it is relevant. Larger entities usually have established training systems, which encourage, police and record this process. They will not need to make many changes. Organisations in this position can choose to adopt the new CPD plan early – currently the suggestion is this will be possible from February 2015 when the SRA publish the guidance to accompany the new plan.
For the rest, implementing such a culture of planning and reflection on learning will require a change of mindset. It may also involve expense and manpower (there is scope here for the development of computer-based systems, akin to those used widely in the financial industry), though the SRA is keen to stress that there is no compulsion to do things this way; noting things in a book could be adequate evidence, if investigated. To give adequate time to get all this in place, the new plan would not apply to everyone until (at present) November 2016 at the earliest.
Reduced investment in training
In practice, the bigger risk is that firms and individuals will spend less on training. Paragraphs 14-18 of the SRA response to the consultation comments discuss this risk openly. Where profit margins are under pressure or there is a pressing need to invest in something else to keep the business afloat, it will be even easier than before to move money across from the training budget. Junior lawyers who feel their needs would be better served by an all day course from a good provider, may find it really difficult to persuade the partners to pay for it. They may be told to go away and do self-directed reading, or that a chat from a more senior lawyer will suffice. Challenging this (on grounds of quality) may be impossible, or dangerous for their promotion prospects. They may be already so overworked that fitting in self-study is impossible.
There is also the risk that established practitioners, with busy professional lives, will not know where the gaps in their knowledge lie. They may genuinely believe that they are perfectly competent, with only very limited training. Or less experienced solicitors may overreact, engaging in far more than is necessary, just to be absolutely sure of having enough evidence to satisfy the SRA, should it have reason to intervene. This will have a downside in terms of cost and time.
The SRA deals with both extremes of concern by saying that the requirements of the Code of Practice and the Handbook will encourage solicitors to take a responsible attitude to their own training and development and that of their employees. The SRA intend to support that with guidance on ways to achieve training targets, the process of reflection and logging of training undertaken, and examples of good practice. This guidance will be derived in part from the results of the research commissioned by the SRA, for which we only have the headline findings. Although the research sampled firms and ABS of all sizes, the statistics released so far are not always split according to size of firm, and kaleidoscope systems in place for trainees (which are likely to be much more robust) and those for qualified staff. The full report was due to be submitted to the SRA on 4 June, but no date has yet been given for its wider publication.
Conclusion
The existing CPD system is unfit for purpose, and the SRA believes its news plan will cure many of its defects. Practitioners will be able to tailor what they learn, and how they learn it, to their practice and level of seniority. Almost all methods of learning will qualify as helping to maintain competence. For the self-motivated, organised lawyer (or one who is policed into this by his or her firm), planning what they need to learn, logging what they do, and both reflecting on and recording the benefits they derived from it, will become an integral part of their professional lives. For the rest, this could be an uphill battle. For some, genuine competence, or over-confidence may reduce the training they undertake. If nothing goes wrong, the SRA will not notice or care. Junior lawyers, without support and back up from their firm, may find themselves left to pay for and organise their own continuing education. All this has been aired in some detail in the legal press and on the Law Society blog.
There has not been much coverage elsewhere yet. Perhaps there will be more public comment when they realise that they are supposed to be content with the fact that the new system is a bit less awful than the old, take comfort from the Code of Conduct’s insistence on professional competence in all legal services, and recognise that, when things go wrong, the SRA will look into the training record of the relevant firm and seek improvement where necessary. It remains to be seen how well this message will be received.