Legal regulators must take action to ensure that lawyers are not operating with “out-of-date” skills or knowledge, the Legal Services Board (LSB) has said.
Responding to concerns that 18 months would not be long enough for the regulators to implement new continuing competence regimes, the LSB has agreed to set out “milestones”.
The oversight regulator launched a review of continuing competence for lawyers two years ago and is working on the final version of a policy statement following a consultation on a draft.
It has made clear that the current system needs to change and the goal of the statement of policy is to be “an effective, proportionate, and targeted regulatory tool to secure the necessary outcomes regarding the ongoing competence of legal professionals”.
The regulators will be expected to ensure their competence regimes match up to the policy.
The chairman of the Bar Council, Mark Fenhalls QC, warned in February this year that the LSB risked breaching the Legal Services Act if it imposed continuing competence regimes on regulators without sufficient evidence.
In a paper for this week’s meeting of its full board, the LSB said “some respondents to the consultation argued that there is an absence of evidence of a widespread lack of competence, and therefore it would be disproportionate to expect regulators to introduce new measures”.
The LSB went on: “We do not consider this to be wholly accurate. Indeed, one of the issues we have identified is that none of the regulators is regularly making a comprehensive assessment of competence across its regulated community.”
It considered from its analysis of the issue that there was a risk that, “during practice, authorised persons’ skills and knowledge will become out-of-date”.
This might be due to changes in the profession and the “wider world”, such as changes in consumer behaviour or technology.
Regulators should be alert to the risk and “take suitable steps to mitigate this through the measures they adopt, so that competence issues do not arise over time and the risk of harm to consumers is reduced”.
Other respondents thought the LSB’s specific expectations on interventions to ensure continuing competence in the draft policy statement were disproportionate, placing an “unreasonable expectation” on them to justify why they were not adopting them.
The interventions include specifying mandatory training for lawyers, carrying out competence assessments in the form of observations and examinations, and reaccreditation schemes.
The LSB said these measures were “based on a thorough programme of evidence-gathering and research, drawing on practices in the legal services sector and elsewhere”.
However, it proposed to amend the wording of this section to ensure that the expectations “clearly represent our policy intention”.
The LSB said many respondents to its consultation “raised concerns about the proposed implementation period of 18 months”, saying it was unclear how much was expected to be achieved within that time and it was not realistic to expect them to have fully met all the outcomes.
Bearing this in mind, the LSB said it might be useful to set some out some milestones and indicative timeframes by when regulators would achieve certain goals in meeting the overall expectations, such as creating an action plan, putting in place a competence framework or equivalent, and then identifying further measures.
It would also be clearer in its consultation response document about what it expected in the short and longer term.
“We note that there are some areas where regulators already have evidence of competence issues that should be addressed through targeted interventions.
“Some respondents said regulators should focus on these high-risk areas as a priority, targeting interventions to improve competence in, for example, criminal advocacy, conveyancing, immigration/asylum and will-writing/ probate.
“We propose to emphasise that where regulators already have evidence of high risk of harm to consumers, action should be prioritised.”