Phillips: Gap between public expectation and reality
There is near unanimity among the public that lawyers should have to demonstrate more actively than now that they remain competent throughout their careers, the Legal Services Board has found.
Research commissioned by the oversight regulator uncovered concerns that the existing arrangements leave room for incompetence to go undetected and unchallenged.
The qualitative and quantitative study commissioned from Community Research is the latest part of the LSB’s work to build the case for ongoing competence checks for lawyers that has also seen a call for evidence and a review of competence frameworks in other countries.
First a panel with 23 members of the public – who either worked in a regulated profession or had some knowledge of the legal sector – spent four weeks considering the issues in live online focus groups, in an online bulletin board and through online polling.
This was followed up with a poll of 1,005 people who first watched a seven-minute video summarising current competence arrangements and presenting positions for and against making changes to the system.
The survey found that 95% thought lawyers should have to demonstrate they remained competent throughout their careers – 55% assumed lawyers already faced regular checks of their skills and abilities.
Only 17% said they had complete confidence in the measures currently in place to provide assurance of the ongoing competence of lawyers, while 47% had ‘some’ confidence. But four in five said regulators should introduce more specific rules, while 88% agreed there should be more consistency in competence requirements across the various branches of the profession.
The panellists were surprised at the lack of consistent and mandatory requirements for different types of lawyers, especially compared to other regulated professions, Community Research reported.
It added: “Panellists were concerned that existing arrangements leave room for incompetence or lack of competence to go undetected and unchallenged.”
At the end of the four weeks, the panellists were unanimous that the current measures did not give them sufficient confidence that lawyers remained competent throughout their careers.
“While they were prepared to believe that most lawyers were diligent, they considered there were too many gaps in the existing system and too little consistency in competence requirements across lawyers,” the research said.
“Many felt strongly that it was important for lawyers to stay up-to-date with changes in law and regulations, and they did not have enough reassurance from current continuing professional development (CPD) measures that this was happening consistently or thoroughly enough.”
The “limited evidence” either of widespread incompetence or that lawyers were maintaining their competence “reinforced the view that further checks are needed”.
The panel’s conclusions were that there should be mandatory requirements, regular checks, and consistent requirements across all lawyers, covering different types of lawyer and areas of law. These should include a core set of baseline standards alongside tailored requirements.
The research said: “They also wanted to see competence requirements reflect the level of risk posed to people using legal services, with those working in the higher risk areas or with more vulnerable clients facing some degree of greater scrutiny.”
The panel supported mandatory CPD requirements with an assessment element, finding the current rules “patchy” amid concerns that regulators did not consistently check the training and development activities lawyers complete.
It also liked re-certification linked to competence like doctors to drive up competence overall and root out poor performers.
“Although there were concerns over the burden it could place on lawyers (and regulators), most panellists supported the idea of some type of revalidation in legal services.
“They suggested that there should be a system of linking recertification (which currently happens through the renewal of practising certificates annually) to competence.
“They felt this could be demonstrated through a range of qualitative measures (such as a portfolio with case reviews, client feedback) and quantitative measures (such as success rates and CPD records).”
There should also be regular spot checks for all lawyers to verify compliance.
LSB chair Dr Helen Phillips said: “This research shows that there is a gap between what the public expect when it comes to lawyers’ competence and what checks are currently in place. We will be developing our thinking on what more needs to be done in this area to build public confidence, and engaging widely on our emerging thoughts.”
The LSB plans to test policy proposals with stakeholders ahead of a formal consultation later this year.
Last month, Sarah Chambers, the chair of the Legal Services Consumer Panel, said lawyers should have to take online tests every 10 years to prove that they remained competent in their specialist fields.
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