Revised QAA will allow advocates to progress without judicial evaluations

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By Legal Futures

27 April 2011

Judicial evaluations: advocates can have two "non-competent" reports in a year

Advocates seeking accreditation under the quality assurance for advocates (QAA) scheme will be allowed to opt for an assessment centre route rather than judges’ evaluations alone, under new proposals being debated today.

Also under the framework proposed by the Joint Advocacy Group (JAG) – made up of  the Solicitors Regulation Authority (SRA), the Bar Standards Board and ILEX Professional Standards – applicants for higher levels of criminal advocacy will be able to be judged “not competent” in two out of five assessments over a 12-month period, yet still progress unscathed to the next level.

There are four levels in all reflecting advocacy in cases of escalating complexity and seriousness.

The JAG’s adoption of an assessment organisation option reflects concerns about an over-reliance on judicial evaluation expressed by the Law Society and the Solicitors Association of Higher Court Advocates.

According to a paper submitted for approval by the SRA’s education and training committee today, candidates choosing assessment will undergo “a series of exercises which are likely to involve a combination of simulated court-room advocacy and other practical with some written exercises”. They would also have to provide a single positive judicial evaluation if they are looking to advance to levels 3 or 4.

Advocates pursuing the evaluation-only route must persuade judges to sign three forms certifying both competence at their current level and readiness to progress to the next. They may seek up to five evaluations in 12 months, no more than two of which can determine non-competence.

“This recognises that there be occasions when the advocate has the equivalent of a bad day in the office but may overall be competent and ready to progress to the next level,” the paper says.

Under the proposed scheme, after an advocate has successfully applied to change level, a system of provisional accreditation, called “green-plating”, comes into effect until they have been judged to have met the new standard. If they fail, they revert to their previous level.

Advocates at level two and above who choose to stay at the same level will be subject to reaccreditation every five years, either by judicial evaluation or assessment organisation.

The SRA paper claims it had found useful the conclusions of research on QAA by “business psychology” specialists Human Assets, which was commissioned by the Legal Services Board and published in March. The paper said the report “identified the same strengths and weaknesses with each of the methods of assessment which JAG has identified, including the methods which have ultimately been proposed”.

The Human Assets report found judicial evaluation to be “one of the more credible methods of evaluation”, but stressed that judges “must be properly trained”.

It was lukewarm about assessment centres, pointing out that simulations are difficult to operate, need to be refreshed regularly to avoid “leaks” as to their content, are costly, and “their shortcomings are likely to be focused upon” by anyone who fails to pass.

If approved by the committee, the scheme will be submitted to the SRA board next month and to the LSB in July. JAG is due to provide details of the scheme’s costs to the LSB by the end of this month, including the cost to advocates of assessments and the overall administrative costs.

In January the LSB threatened the three regulators with use of its enforcement powers because it was unhappy with aspects of the QAA. The paper describes the timing of this as “unfortunate” as the JAG was about to share with the board details of how the scheme was changing. No enforcement notice has been issued to date; instead the Human Assets report was commissioned.

If the scheme is approved, the live assessment of advocates at levels 3 and 4 – involving more complex cases in the Crown Courts – will begin next March. Before that happens, advocates will be given a three-month “window” in which to apply to JAG setting out their current practising level, starting on 2 January 2012.

In May and June, JAG plans to “road test” aspects of the QAA scheme at Canterbury and Durham court centres.

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