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
mandatory requirements).
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.
Mr Pettifog
Mark Anderson
Paul Maclennan
Stephen Brett
Victor Warner
IP Draughts 
Regulators gotta regulate. Bypasses have to be built.
And count what can be counted…
Patent & Trade Mark attorneys have been asked a similar question by the Legal Services Board (LSB) and a member of the Chartered Institutes of both professions met with 2 members of the LSB back in February 2022 (covered by a videoconference webinar entitled “Ensuring lawyers’ ongoing competence: What more is needed?”). The summary for this event was …
‘Over the last two years, the LSB has gathered evidence on whether the frontline legal regulators have the right tools in place to ensure that the practitioners they regulate have the necessary and up to date skills, knowledge, attributes and behaviours to provide good quality legal services. Following extensive research with consumers [quite what this involved was never specified] and into requirements adopted in other sectors and in other jurisdictions, the LSB has determined the status quo in the legal services sector is not best serving the public interest or the interests of consumers.
In this session, the LSB will share its insights and explain the rationale behind the proposed new requirements. The LSB is proposing that regulators will use a range of data and feedback to regularly assess levels of competence and make appropriate interventions, e.g. spot checks, training requirements and accreditation, to ensure standards are maintained. It also expects that regulators should take suitable remedial action when standards of competence are not met by individuals.’
Obviously patent & trademark attorneys make up only a tiny proportion of the “Legal Services Sector”, but it seems that similar issues have been raised here too. There was no real detail about what these new competency requirements would involve except that there main ‘take-home’ points were that any additional requirement needed to have “a light touch”, be careful of cost implications and should focus more on “re-educating” those who were found to all short of the standards rather than “punishing” them.
They also said that any proposals may take from 18 months – 3 years to finalise, so it looks like we will just have too wait and see! With so much else much more important going on in the IP profession at the moment as well as the world at large, I can’t see that this will be top of my priority list.
My understanding is that this week’s policy statement from the LSB requires each front line regulator to take steps to address the points in the policy. Detailed decisions on regulation are left to the individual regulator, but they all have to comply with the policy.
Perception is the new reality. The regulators also are breaching the dictum that “if you don’t measure, you can’t manage.” They are not measuring, but…
Agreed!