Call for “robust plan” to tackle lawyer incompetence in high-risk areas

Chambers: Firmer mandate needed

The Legal Services Consumer Panel (LSCP) has called for a “robust plan” to tackle incompetence by lawyers in “high-risk areas”, such as immigration and criminal advocacy.

Meanwhile the Bar Council said it was “deeply concerned” that proposals by the Legal Services Board (LSB) to introduce competence checks would be costly and “unnecessarily time-consuming”.

They were responding to an LSB consultation on its draft policy statement on ongoing competence, which would require legal regulators to understand levels of competence and make “appropriate interventions” if necessary, such as compulsory training, formal assessments or periodic reaccreditation.

While it agreed with “both the generality and most of the finer details of the proposals”, LSCP chair Sarah Chambers said it wanted to see “firmer mandates” for high-risk areas and those where there was “already evidence” of incompetence.

“For example, there is evidence to show that asylum, immigration, and criminal advocacy have had issues relating to quality of advice and competence.

“These issues have been noted for several years, during which there have been no convincing action plans or timeframes for addressing them.

“While the LSB’s outcomes and proposed options for monitoring and gathering evidence is fit for the purpose of identifying and tackling emerging issues, we are of the view that there needs to be a robust plan for areas where issues have already been identified.”

The Law Society agreed that lawyers who practise in “high-risk areas” might be expected to “undertake regular, annual updates to their legal knowledge”.

The society said it ran several accreditation schemes which could provide “a model of good practice” to design new schemes for other areas.

Both the society and the Bar Council opposed the introduction of measures such as individual competence assessments, observations or exams.

The Bar Council said: “We disagree with the proposition that, where there is no good evidence of a problem of maintaining competence, that new structures should be put in place which will by their nature be invasive and expensive to assess continuing competence.”

Some of the proposals, such as spot-checks on knowledge or file reviews, were “seriously flawed, reflect a misunderstanding of how the legal profession operates, and include proposals which would probably be unlawful if implemented”.

For example, a file review in a criminal case would likely lead to breaches of client confidentiality if it was a defence file and of disclosure rules if it was a prosecution file.

“Furthermore, in a jurisdiction that involves digital working any case ‘file’ would be spread across handwritten and electronic notes, the notes themselves often being placed into the digital case system itself, access to which would be restricted and subject to GDPR safeguards.”

The Solicitors Regulation Authority (SRA) said it recognised the “force of the LSB’s consumer research”, which showed that consumers expected more specific checks on competence throughout lawyers’ careers and regulators should do more to reduce the risk of lack of competence.

The regulator said it had established a programme of work on the issue, and there would be “focused reviews of competence in general practice and in-house solicitors”.

The SRA’s main concern was over the suggestion that competence frameworks should include specific requirements for individuals working in particular practice areas.

“Solicitors have a very wide diversity of practice, and our competence statement is deliberately broad and generic so that it can be applied to the solicitor profession as a whole.”

The SRA said the “overwhelming majority” of organisations it consulted when developing the competence statement agreed that it reflected what they would expect a competent solicitor to be able to do and the majority that no additional competences were needed.

“It would, we believe, be impossible to cover – in one statement – how the general competences would apply to solicitors practising in specific fields.”

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