Continuing Competence – changes that may be coming soon!

The Public Panel Report recently published by the Legal Services Board (LSB) is likely to play a big part in determining the direction of travel of continuing competency in the future, especially when the report found that, “the public expects lawyers to be competent, but some doubt that all lawyers are competent”.

Competency obligations are currently covered in both the SRA Codes of Conduct for Solicitors (3.2, 3.3, 3.6 and 7.1) and Firms (3.1, 4.2 and 4.3) and the Statement of Solicitor Competence; firms holding Law Society accreditations have additional obligations, for example, Lexcel (4.8 and 5.9) and Conveyancing Quality Scheme (3.2, 3.3 and 3.4).   

The LSB Ongoing Competence Report

The LSB’s report found that “the current system is at odds with what the public expected of competence assurance in a profession, and law in particular”, and provides some interesting data from the public to support this, for example:

• 95% believe that lawyers should have to demonstrate they remain competent to do their jobs
  
  
• 55% assume that lawyers face regular checks of their competence
  
  
• 79% believe regulators should introduce more specific rules around competency

So how does the public judge the competence of lawyers?

The public currently relies on a number of subjective indicators of competence, for example, reputation, online reviews and gut feeling; they also rely on objective indicators such as qualifications, membership of professional bodies and evidence of CPD. Length in the profession is also seen as an indicator.

Other interesting findings in the LSB report include, “most people assume - and expect - that professionals, including lawyers, will face regular checks on their competence throughout their careers”, and “overall, the majority of people agreed that there was not enough reassurance that the measures currently in place were identifying and tackling cases of insufficient competence”; is there any wonder the public believes this when they see cases like this in the press!

• A law firm owner’s failures turned his practice into a “complete shambles” which was “akin to a slow-motion car crash occurring over a number of years”
  
  
• A solicitor who held nearly 1,500 historical client balances and whose failure to remedy accounts rule breaches was described as a “complete dereliction of duty”
  
  
• Two solicitors allowed their firm to take on work in areas where they had no experience

Change is clearly needed as far as the public is concerned and this is likely to include:

• A single consistent competence framework - a matrix that reflects both different areas of law and different levels of seniority/responsibility
  
  
• Mandatory CPD requirements – routine and mandatory CPD requirements with an assessment element
  
  
• Recertification linked to competence – a system of linking recertification to competence
  
  
• Regulator checks – to verify compliance with CPD and random or targeted ‘deep dive’ checks
  
  
• Remediation – to pick up issues early and potentially prevent more serious competence issues
  
  
• Feedback – used in conjunction with the above to assess soft skills and client experience

A more appropriate competency framework based on the above should bring a number of benefits, including:

• An opportunity for professional development
  
  
• Weeding out poor performers who may affect the reputation of the sector
  
  
• Offering firms an opportunity to promote their high standards, thereby driving competitiveness
  
  
• Helping consumers to compare and choose lawyers to meet their needs.

There is significant pressure on regulators to make changes to the current competency regime, so it is likely that change will happen sooner rather than later, so firms need to start thinking about what changes they will need to make to their existing competency arrangements.