A guest post by Julie Brannan, director of education and training at the Solicitors Regulation Authority
Brannan: preferred option is rigorous, flexible and entity-based
There’s nothing like the prospect of losing something to make you feel all warm and nostalgic about it, even when that something is your annual16 hours CPD requirement…
There is a widespread view that the current CPD system is not working. Everyone knows stories of people who register for CPD courses and leave before the end, or those who take courses which do not relate to their areas of practice, just to get the points, or who work in niche areas and therefore struggle to find appropriate accredited courses, or, yet again, who feel frustrated that genuine learning by researching the up-to-date position for a case doesn’t count.
This is even before you begin to think, why 16 hours? Why not 10, or 25 – or 50 for that matter?
The Legal Education and Training Review report, published last year, drew attention to this issue, and in our response to the report we announced a commitment to undertake a fundamental review of CPD.
At the beginning of February, we launched a consultation on continuing competence which explores which of three approaches to CPD is best suited to enabling individuals and regulated entities to maintain the skills and knowledge necessary to deliver competent legal services.
Our preferred approach to CPD is the first of the three options set out in the consultation paper. This involves shifting the focus of solicitor, firm and regulator away from compliance with the current arbitrary hours requirement, and onto competence. We would remove prescriptive CPD regulations and rely instead on existing provisions in the Handbook and code of conduct requiring regulated entities and individuals to deliver competent legal services and train and supervise their staff.
We would prescribe neither the length nor content of CPD. Instead, we would provide non-mandatory guidance to both entities and individuals, to help them identify what training best suits their individual needs and level of personal development.
This option has three advantages: it is rigorous, flexible and entity-based.
Rigorous, because requiring individuals and entities to identify and address any weaknesses in their practice is tougher than asking someone simply to sign up to 16 hours’ training a year.
Flexible, because it recognises that training needs vary from person to person and from firm to firm.
And entity-based, in that it would enable different entities to develop their own, new and innovative approaches to training and development, which can take into account the firm’s business needs and available resource.
Option two retains a prescribed CPD scheme, albeit one based on the reflective cycle. CPD regulations would require solicitors to identify and document their training needs in a development plan, then implement and evaluate that plan in a documented annual cycle.
Like option one, this has the benefit of focusing on the effectiveness of training rather than on compliance and it, too, recognises the entity context for CPD. But it is a one-size-fits-all approach, requiring all individuals and entities to adopt a single model of CPD whether it suits them or not.
Option three is closest to the current system in that it retains a minimum hours requirement. Unlike the present system, however, CPD would need to relate to actual or likely practice and the reporting obligation would be imposed on the entity, rather than the individual. We would also allow a wider range of activities to count, recognising the value of on-the-job learning.
This option addresses some of the obvious shortcomings of the current system. However, like the present system, it would require every solicitor to do the same amount of training, whether they needed it or not, and whether or not it improved their practice.
It is with interest, then, that I have read the lunchtime discussion in Legal Futures’ LinkedIn forum about whether, if the minimum hours requirement were abolished, solicitors would actually bother doing any CPD. Responses vary, but there is certainly some nervousness, and the minimum hours requirement is seen by some contributors as ensuring at least minimal training and development on the part of individuals who don’t take CPD seriously.
This reflects the undoubted current of opinion among solicitors that wishes to see the hours requirement retained. There is clarity and certainty around it: done that, can tick it off and heave a sigh of relief for the rest of the year.
The problem – and potential danger – of the hours approach, though, is that the comfort it provides is false. Compliance does not guarantee competence and, worse still, it distracts from the overriding requirement in the code for a solicitor to deliver a proper standard of service.
Solicitors should be focusing on the quality of their practice, not a last-minute scrabble for those precious hours.
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