LSB to press ahead with continuing competence regime

Phillips: Very few routine checks once a lawyer has qualified

The Legal Services Board (LSB) is pushing ahead with plans to introduce continuing competence checks for lawyers.

This could include feedback from consumers, judges and peers, assurance visits and even formal revalidation.

The oversight regulator said the legal sector was “out of step” with others – and consumer expectation – by having “few checks on an individual’s competence throughout their careers”. The CPD regime is not seen as robust enough on its own.

In a report on responses to its call for evidence on the issue, the LSB said: “We were pleased to find that some regulators, firms, chambers, circuits and individuals in the legal services sector have adopted methods for testing competence, but unfortunately, these are not used routinely, tend to have limited coverage and may not be targeted to risks to consumers.”

The LSB will look to set out standards of competence that lawyers should meet throughout their careers and the mechanisms the frontline regulators should have in place to identify those failing to meet them, as well as “areas of increased risk” to consumers.

A number of organisations, such as CILEx Regulation, the Council for Licensed Conveyancers and the Society of Trust and Estate Practitioners, said client feedback should be captured.

The Legal Services Consumer Panel said it should be incorporated into appraisals, while Transform Justice said it should be gathered routinely.

The Bar Standards Board (BSB) said it was “exploring ways to collect feedback” from judges as part of barristers’ annual continuing professional development.

However, the Bar Council said this should be gathered informally and it did not think there was a role for formal feedback from judges.

CILEx Regulation said feedback could also be incorporated into continuing competence assessments from peer review exercises, and the Bar Council said it would support encouraging clerks to pass on positive and negative feedback from solicitors.

The LSB mentioned that, in the Netherlands, advocates undergo an ‘annual quality assessment’, involving eight hours of structured peer discussion and four hours of peer review.

Remedial tools included training and supervision. The LSB noted that, in contrast with sectors like aviation, there was a “limited focus” on remediation in the legal services sector.

The Legal Ombudsman commented that it would be “good to have a facility” where it could refer legal professionals for remediation, as it could currently do for misconduct.

The Law Society called for “random and risk-based” checks of CPD records to detect potential competence issues.

The LSB said some organisations said specialist training should be required for lawyers to work with some categories of consumer – such as mental health training for those dealing with litigants in person.

Other organisations, such as the Legal Aid Agency and Office of the Immigration Services Commissioner, said assurance visits could be useful for assessing continuing competence.

The General Medical Council and Nursing and Midwifery Council provided information about revalidation that doctors, nurses and midwives must complete to stay in practice.

The LSB said it intended to hold pre-consultation workshops in mid-2021 and formally consult on a “more robust approach” in the second half of the year.

It has commissioned research on approaches taken by other jurisdictions from consultants Hook Tangaza.

Helen Phillips, chair of the LSB, said: “Many people assume that legal professionals are subject to ongoing formal reviews of their competence, but there are, in fact, very few routine checks once a lawyer has qualified.

“Legal regulators typically do not have systems or processes in place to identify or respond to concerns about competence.

“This is unusual and out of step with other professions which routinely adopt tools to ensure ongoing competence to promote public trust and confidence, and protect consumers from harm.

“We need to reshape legal services to better meet the needs of society, which includes ensuring lawyers remain competent throughout their careers.”

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