Are you competent?
What a question! I am sure I have grabbed your attention which of course I wanted to do. On 1 April 2015 the SRA issued the new competence statement for solicitors, which is a tool to ensure we remain competent to provide a proper standard of service to clients throughout our career in accordance with Principle 5 of the SRA Principles (2011).
The move to the new system can be made now but will be compulsory from 1 November 2016 and as it involves a different approach to that which most individuals and firms have adopted hitherto it makes sense to use this transitional period to familiarise yourself with what is required and how you and your firm will approach it.
There are three parts to the competence statement but for qualified solicitors you only need to read the competence statement itself and decide whether you meet the threshold standard or above depending on your role.
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Four key areas of competence
There are four key areas in which we solicitors must be competent:
- Ethics, professionalism and judgement
- Technical legal practice
- Working with other people
- Managing ourselves and our work
Traditional approaches to continuing professional development (CPD) have focused on technical legal practice so you will need a system for assessing a person’s competence against all four areas to begin with as a base point for the future.
For those of you who belong to STEP the only compulsory CPD you must undertake each year is one hour of ethical guidance and training and this would be a useful way of approaching the Ethics, professionalism and judgement section of the competence statement above, although it is likely to be insufficient alone. STEP too has moved away from a specified number of hours of CPD towards a reflective approach towards learning and development.
This new approach and the requirements of the SRA’s ethics, professionalism and judgement criteria is to take personal responsibility for learning and development which involves reflecting on and learning from practice and learning from other people. It means we have to be willing to accurately evaluate our strengths and weaknesses not just of legal knowledge but also of practice and the delivery of legal services. This may mean quite a lot of development for senior practitioners in learning about the use of technology in research, the delivery of services and in acquiring knowledge.
Any good manager of people knows that you must communicate, communicate and communicate so the third area of competence is useful here in examining not just communication with clients, which is of course important, but also establishing and maintaining effective and professional relations with other people.
In my experience of working with lawyers of all types there are those who are excellent at managing themselves and those who believe they are but sadly they are not. Anything which requires each of us to examine objectively our competence at managing ourselves and our workload will make for happier, healthier and less stressful lives and is to be commended.
As the SRA says the competence statement is generic to all solicitors whatever their level of experience or expertise so it developed a threshold standard to show at what level we become competent to call ourselves a solicitor (level 3) and thereafter at what level do we operate or how high do we and our peers believe we fly!
Thus for all qualified solicitors we must be at level 3 at least to be regarded as competent which means:
- Our level of knowledge at any one time in our area of work means that we can identify the legal principles relevant to the area of practice in which we operate and we must be able to apply them appropriately and effectively to individual cases – this should be self-evident from the file review process operated in your firm.
- Our standard of work must be acceptable routinely to manage straightforward tasks; whereas we might lack refinement in more complex tasks – again a firm’s appraisal system or client feedback survey data might highlight whether we are satisfying the core work well and where our level of expertise is being stretched to its limit.
- We are able to achieve most tasks and legal matters using our own judgement whilst recognising when support is needed – again appraisal would flag up whether this was true or if you are a sole practitioner you will ask yourself whether you are self-aware enough to use counsel sometimes when your own level of knowledge is insufficient.
- Even though we are able to deal with straightforward transactions we must also be able to deal with occasional, unfamiliar tasks which present a range of problems and choices – this is an interesting one as in my experience some people are good at breaking down a problem into its constituent parts and then tackling those even though they have never seen the overarching problem before; whereas, some people are a bit like a rabbit in the headlights – they panic or freeze when faced with the unfamiliar even though with a bit of thought and logic they do have the skills to address it really.
- We must be able to understand the significance of individual actions in the context of the objectives of the transaction/strategy for the case – this is vital when offering unbundled services to clients such as in probate when some of the actions are to be undertaken by a family member, for example.
- We need to be able to use experience to check information provided and to form judgements about possible courses of action and ways forward – after all as legal experts what are we selling if not our experience of having dealt with the same transaction before or our experience of dealing with similar matters before which we can bring to bear on the current matter.
Documenting your CPD record
Up to now it was a straightforward matter to log the number of hours of accredited CPD undertaken in the training year and produce evidence of attendance or other completion of your CPD both to your firm and to the regulator.
From 1 November 2014 the SRA no longer accredit training providers so the choice of training provider is left entirely to you and your firm.
The new approach to competence and the recording of your on-going proof of competence only becomes mandatory from 1 November 2016 although you and your firm may adopt it from 1 April 2015.
From 1 November 2016 the SRA expect you to:
- Reflect on the quality of your personal practice by reference to the competence statement to identify your learning and development needs
- Plan to and do address your identified learning and development needs
- Record and evaluate your learning activity so that if the SRA conducts a regulatory review or receives a complaint about a competence risk you can demonstrate that you have taken steps to ensure your ongoing competence
- Make an annual declaration to confirm you have completed 1-3 above.
There is no prescription as to how you record 1-3 above but the SRA provide a simple template for a development plan and a development record. Given many of us in the private client world may well be also needing to comply with another set of rules e.g. STEP it might be worth investigating these requirements too (STEP provides an electronic tool which is not compulsory) so that you can use one tool to accommodate all your CPD requirements.
I have always favoured a ‘Learning Log’ approach and keep notebooks with handwritten notes, diagrams, cuttings and links to websites in to use in my learning or as evidence of attendance at events or reading I have done. If you prefer electronic versions of this approach you could try a bookmarking tool like Diigo, Evernote or Delicious.
The key to it all is that initial assessment of your current level of competence and how you plan to achieve and exceed the threshold standard or above depending on your role in your firm.
Are you open to an objective assessment of your strengths & weaknesses?
At the heart of this new world is our personal resilience in the face of objective assessment. There is a real need to not take the opinion of others trying to help as negative but as an opportunity to get better at whatever weakness has been highlighted. A good appraisal system should be flagging these sort of issues up anyway although in practice it is sometimes hard to make it work if the participants are suspicious of the motives behind the scheme.
Self-awareness is a strong card but if it is our weak suit we must steal ourselves and seek the help of others in assessing our strengths and weaknesses, then do something to address those weaknesses. We might only have one, we might have several but at different levels so we will need to prioritise them for our own satisfaction or more likely for our firm.
I can help you examine your strengths and weaknesses as I have acted as a coach and mentor for individuals on several occasions, particularly those struggling with supervisory matters. Give me a ring and we might book a few skype sessions or, if practicable, some face-to-face sessions.
I can also help your firm to analyse the best way to approach the assessment of the need for skills, knowledge or behavioural improvement in line with a firm’s business plan.
As ever, I can prepare and present suitable face-to-face training to bring on your knowledge or skill to the right standard to meet the threshold. I offer webinars via LiPS Legal and videos via Professional Conferences and I am currently working on some e-learning ideas for later in the year which I will share with you when available.
There is no need to see this change in CPD requirements as negative; it has the potential to really improve your firm’s competitive advantage in a busy marketplace. It is not an easy alternative and it is not a cheap option compared to the collection of CPD hours or points. It is different and definitely the way to bring about improvements at all levels in a firm.
Director, LawSkills Ltd
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