Regulators of legal services must develop plans for “remedial action to address competence issues” among lawyers, according to a draft policy statement published today by the Legal Services Board (LSB).
The oversight regulator has made clear that the current system needs to change; while the draft statement would not make spot checks, competency tests or regular reaccreditation compulsory, regulators would have to explain why they were pursuing other options.
The LSB said a statement of policy would provide “an effective, proportionate, and targeted regulatory tool to secure the necessary outcomes regarding the ongoing competence of legal professionals”.
The research showed a gap between public expectation of checks to ensure lawyers’ competence and the reality that few formal measures exist.
Spot checks, competency tests and regular reaccreditation were widely discussed during the evidence-gathering process, but the LSB has decided against imposing them as mandatory methods of ensuring competence.
The consultation said spot checks were popular with its ‘public panel’ of consumers and “would provide a useful opportunity for regulators to proactively check the competence of authorised persons”.
The draft policy statement says regulators “should consider” gathering information from “supervisory activities such as spot checks, audits, file reviews or equivalent oversight checks”.
On competence assessments and regular reaccreditation, the LSB said it expected regulators to “consider the merits” of both and “should not rule out the introduction of such formal measures on the basis of costs alone”.
The oversight regulator said there was evidence that these measures would give the public greater confidence” in lawyers’ competence.
The draft statement requires regulators to “demonstrate that they have given consideration” to both measures and taken “evidence-based decisions” on whether to adopt them.
When it comes to remedial action, the language of the draft statement changes: regulators “must develop an approach that provides for appropriate remedial action to be taken to address competence issues”.
This is defined as “activities intended to improve or correct competence issues” and includes “requiring a period of supervised and/or restricted practice, or requiring specific training”.
Regulators “must provide transparency of their approach and clearly set out the process for when and how they will take remedial action”.
In doing so, they should consider the factors they will use to determine that remedial action is suitable and what kind of action is “most appropriate” in each case.
They should also consider how to “follow up the competence issue to prevent recurrence”.
The LSB said the Solicitors Regulation Authority, Bar Standards Board, CILEx Regulation and the Intellectual Property Regulation had all produced competence frameworks.
The draft statement requires all regulators to have them – the Costs Lawyer Standards Board is currently consulting on its.
“Current thinking” was that regulators should have their own competence frameworks but the LSB said it was open to other views.
“We can see merit in an alternative option, which would see the development of a set of shared core competencies for all authorised persons.
“Regardless of the approach we adopt in the statement of policy, we note that this is an area where there are useful opportunities for collaboration between regulators.”
Dr Helen Phillips, chair of the LSB, commented: “Consumers should be able to trust in the competence of legal service providers, not just when they qualify but throughout their careers. The status quo is not enough to protect the public interest.
“We want to support regulators to adopt a proportionate and risk-based approach, and develop an approach that is fit for purpose for the professions they regulate, while ensuring a minimum standard of ongoing competence requirements across the sector.”
The consultation closes on 7 March.