Lawyers’ legal education and training should be aimed at the specific activities they will be authorised to practise rather than at achieving a particular title, the Legal Services Consumer Panel (LSCP) has urged.
“Regulated legal advisors” should also undergo periodic revalidation to measure their continuing competence.
The suggestions, published today, are among a raft of radical proposals made in answer to the Legal Education and Training Review’s (LETR) recent call for evidence. The LSCP presents its ideas in what it calls “think-piece mode”, which addresses training and competence issues within the context of an “activity-based system of regulation”.
In the LSCP’s “vision”, approved regulators would authorise “regulated legal entities” who wished to provide reserved legal activities to consumers. These would need to demonstrate compliance against the outcome that their workforce is appropriately trained and supervised, and would be required to allocate specific responsibilities to “regulated legal advisors” as required by the approved regulators, relating either to practice areas or roles within entities.
These advisors would have to “demonstrate competence… by meeting authorisation requirements which would be separately granted and vary according to the mix of activities they wished to provide to consumers. These permissions would be identified on practising certificates”.
It continues: “Authorisation could involve no legal training requirements, general legal training requirements, or, for higher quality-risk activities, specialist legal training requirements.”
The LSCP recognises that the “logical consequence of our preferred direction of travel for the education and training review is that the professional titles lose meaning. The focus of regulation is on entities and activities, rather than the individual lawyer. Authorisation would no longer be automatically linked to a right to practise each of the reserved activities”.
The starting point of the LSCP’s submission is that consumers are vulnerable to poor-quality legal advice and that the present education and training system is “inflexible, out-of-step with an increasingly integrated profession and is a poor fit with modern notions of regulation”.
It calls for the LETR “to consider radical solutions rather than just tinker at the margins” because the context for the review is “a heady mix of historical legacy, current developments and likely future trends”. The viewpoint that the system is not broken and so does not need fixing “smacks of complacency”, it says.
The LSCP welcomes the Legal Services Board’s moves towards regulating lawyers at entity level and encouraging a shift to an “activity-based” approach, which varies regulation according to the risk associated with the area of law being practised or the role occupied within a firm.
Training should also relate to activities, it argues, although over-specialisation is to be avoided. A legal qualification that covers core legal subjects is needed but the GP-style model is unsuitable: “It is impossible for a single qualification to prepare an individual for the sheer diversity of roles they might, perhaps much later, come to occupy.”
Entry to legal markets should be allowed on the basis that “anyone who can demonstrate their competence to practise should be permitted to provide legal services to consumers under appropriate supervision”.
The LSCP urges that the education and training system should support diversity within the profession not just in order that the workforce reflects the population but because it “is also more likely to understand and respond to the diverse needs of clients”. Activity-based authorisation should improve diversity, for instance by supporting “more non-degree entry routes”.
Existing hours-based continuing professional development (CPD) schemes are “widely discredited” and their failings “may point to underlying cultural problems”, the panel says. It hopes the LETR will provide evidence for a better approach to CPD and predicts the “key is likely to be creating the right culture – away from anti-avoidance towards pride in performance”.
Meanwhile, periodic revalidation similar to that undertaken by doctors is necessary to complement CPD, at least in “higher quality-risk areas”, argues the LSCP. Such a review of competence would benefit consumers and enable regulators to pre-empt problems.
The LSCP criticises regulators for failing to measure the quality of legal advice, causing what it describes as “a massive hole in the evidence base”. When studies have been done of the quality of lawyers’ work, the findings have been poor, it points out.
Training courses for lawyers should include subjects such as “dealing with consumers in an advice setting, consumer diversity and professional ethics”. But at the same time, training should not go “beyond what is necessary to certify quality” or be so burdensome as to create “unnecessary entry barriers”, the panel cautions.