You know that feeling in your stomach, when you see something coming that you are sure will be a disaster? IP Draughts had that feeling this morning, when he read the Legal Services Board’s latest “statutory statement of policy on ongoing competence“.
The LSB is the super-regulator of lawyers in England and Wales. It oversees the regulators for each of the six or so branches of the legal profession, which in the case of solicitors is the SRA. The document linked above is directed to the regulators. It tells them what it expects them to do, in the field of ensuring the ongoing competence of lawyers.
To quote from the LSB’s press release that accompanied the statement:
LSB consumer research conducted during the project shows a gap between what the public expects regarding lawyers’ competence and the current checks in place:
- 95% of people believe lawyers should have to demonstrate they remain competent throughout their careers.
- When informed about current arrangements, almost nine in ten people (87%) think legal services regulators should do more to reduce the risk of a lack of competence undermining public trust in the legal system.
Several aspects of this statement are troubling:
- Is there a competency problem that is undermining public trust in the legal system, or is this just a vox pop, with members of the public responding to an opinion poll survey? How many of the people consulted use legal services regularly? Would the same answer have been given if the people consulted were told that “doing more” would increase the cost of legal services? This classic extract from Yes, Minister sums up the general problem.
- There is an air of “our survey indicates that the public expects us to do something, so we will satisfy that expectation, and show ourself to be good, by passing the expectation down the line”.
- More fundamentally, what about the many lawyers who do not regularly advise members of the public? What justification is there for imposing new obligations on them?
The LSB is careful to qualify their policy by saying it should be applied in a way that is “suitable for the regulated community”. But that doesn’t give any reassurance that a regulator can take the view that the policy is completely unsuited to their “community”.
Another sentence from the press release reinforces IP Draughts’ sense of dismay:
Our work in this area concluded that no one can currently say, with any degree of confidence, how often competence issues arise among regulated lawyers. Addressing this gap will not just promote the interests of the public and consumers, it should also be in the interests of the profession and the fair and effective administration of justice.
If no one can say how often competence is a problem, perhaps it is never a problem, in which case further action would be ridiculous.
As for “it should also be in the interests of the profession”, let us decide that, thank you.
So, what are they proposing that is different to how things are done currently? The bit that stood out for IP Draughts in the policy was the following phrase:
…regulators should consider a range of measures, such as …
c. Specifying training, learning and development requirements (including
d. Competence assessments, for example, observation or examinations.
e. Reaccreditation models (i.e. requiring periodic proof of competence to
maintain a practising certificate).
In other words, the SRA may have to:
i. reverse its decision to abolish specific CPD requirements (e.g. minimum number of hours)
ii. introduce monitoring of work (cf classroom monitoring of teachers), or
iii. introduce ongoing tests of competence and reaccreditation throughout a lawyer’s career.
The involvement of the SRA in a solicitor’s work is already intrusive, and far more than when IP Draughts qualified. Depending on how these policies are adopted, they could significantly increase the burden on solicitors, all because members of the public, when asked, thought it would be a good idea.
Some of these ideas are encountered in other professions. IP Draughts knows a nurse who has to provide a record of training and reflective activities each time she is reaccredited, every 3 years. Putting together and submitting a file for this exercise seems a waste of everyone’s time, but ticks a bureacratic box.
Oh dear. IP Draughts will try to cheer himself up by reading the Wagatha Christie judgment.