The Legal Services Board (LSB) has heard calls for regulators to take a more “hands-on” approach to ensuring that lawyers remain competent through their careers.
The oversight regulator is committed to a review of continuing competence and it emerged this summer that this will include considering formal periodic reaccreditation for lawyers.
As part of its evidence gathering, it held a roundtable event at Northumbria University last week with a mixed group of judges, solicitors, barristers, academics and consumer representatives.
In a note of the meeting, the LSB said that, in the context of the shift to self-assessment of CPD, some participants believed regulators needed to take a more “hands-on” approach.
“The current system has a high reliance on lawyers being responsible for their own training and there are limits to how well people can self-assess their own competence.”
Other participants said competency in the legal sector was often “assumed through a lack of complaints”, an approach which had its limitations.
“Not enough is known about the competency of professionals and the quality of supervision varies greatly across lawyers, firms and specialities.”
Also limited in the current system, with its “high reliance on lawyers being responsible for their own training”, was the ability of lawyers or anyone else to “self-assess their own competence”.
It was noted that, despite the new outcomes-focused approach to CPD, some law firms maintained the traditional prescriptive requirement of at least 16 hours every year, because it had value in ensuring some CPD was done.
While comparisons are sometimes made between lawyers and doctors, who go through a revalidation exercise every five years, one participant pointed out that the “competitive nature of legal practice and varying size of firms” set it apart from other professions like medicine or teaching.
When it came to “potential areas of higher risk” in terms of competency, participants highlighted advocacy.
The LSB said this summer that its experience of the failed Quality Assurance Scheme for Advocates (QASA), which would have introduced reaccreditation every five years, was “of particular relevance” to its forthcoming review.
Responding to repeated criticism from the oversight regulator of its monitoring of advocacy, the Solicitors Regulation Authority has published plans for a centralised advocacy assessment for solicitors wanting higher rights of audience.
Participants at the LSB roundtable said they believed there were “significant issues with the quality of some advocacy” and judges had “limited means” of dealing with it.
“There could be more risks to a person’s competency towards the end of their career or following a long period of absence, or in areas of law with an inherent public interest or consumer risk, such as youth advocacy or conveyancing”.
One problem was grading of advocates, beyond the distinction between juniors and silks, meaning that there was “little to prevent” people from taking on work beyond their competence. QASA would have introduced grading.
Participants suggested that the LSB should consider ways for judges to provide feedback on advocacy quality.
“For example, judges are accustomed to completing forms after a meeting on case progression. This format could be extended as a means of providing feedback regularly and efficiently.”
More generally, participants thought observation and assessment would be useful as part of assuring competence, although it should not be based on “single pieces of evidence”.
Client feedback was also useful, but there were instances when “competent advice from a lawyer to a client may not be positively received”.