News focus: SRA gets tough on competence

Back when CPD (continuing professional development) points were a thing, it was not uncommon for me to attend a conference and accidentally be awarded a certificate at the end. One year I had accumulated enough points to satisfy the minimum CPD requirements for a solicitor, though you would not want me writing a will for you.

CPD points came to be regarded as a box-ticking exercise rather than a meaningful measure of ongoing knowledge and ability. The system was duly replaced in 2016 by a requirement that practitioners make a mandatory ‘statement of competence’.

But trusting the profession to assess itself – and the Solicitors Regulation Authority to judge from these statements whether solicitors have done enough – is not working. That is according to the Legal Services Board (which is being heavily leant on by the Competition and Markets Authority). The legal sector is now said to be ‘out of touch’ with other professions on measuring continuing competence.

The SRA was put on notice to respond and did so this week. Notably, the regulator wants to make sure solicitors comply with their responsibilities, not add to the existing ones.

Despite fears of returning to a more prescriptive system, there is no going back to mandatory CPD points or anything similar. The statement of solicitor competence must still be declared as part of the practising certificate renewals exercise, but will be largely unchanged, for the short term at least.

Solicitors are reminded to reflect on the quality of their practice, identify and address learning and development needs, record what they have learnt or developed, and evaluate how effectively they are remaining competent.

Reflection is ‘central’ to this process, the SRA states, but a recent review of training records showed solicitors ‘do not always record the reflections that prompt them to decide on a subsequent learning activity’. One wonders how the SRA would feel if solicitors’ every ‘reflection’ arrived in its inbox on PC renewal day.

The competence statement will be assessed as part of the review of the Solicitors Qualifying Exam in 2025/26, but other than a few best-practice examples being published this year, the status quo remains for now.

One big change is that the SRA will apply a ‘proactive’ approach to determining levels of competence within the profession, and to finding areas where competence may need to improve. From this summer, it will publish an annual report with a general assessment of the profession’s competence, highlighting areas where standards fall short.

Collecting such data will require firms to provide details of first-tier complaints and professional indemnity insurance claims. The regulator will make spot checks, and conduct audits and file reviews. The process is likely to become more onerous and intrusive: the SRA will want to see evidence of supervision, quality checks and training records.

'We will take enforcement action where necessary to protect consumers'

Paul Philip, SRA

Ominously, the regulator states that its first annual assessment will include reports made by consumers (and others such as solicitors or the judiciary) alleging incompetence, as well as declarations regarding whether solicitors have ‘reflected and addressed their identified learning and development needs’.

Incompetence is a theme that comes up repeatedly in the SRA’s response. It is clear this will become a regular – and no doubt uncomfortable – feature of assessments of the profession. The first annual assessment will include data on reports made of incompetence. The SRA is also working on making it easier for anyone to report solicitor or firm conduct issues.

The findings of the annual assessment will influence the work of the regulator and whether it focuses on specific types of practice. Competence in particular areas such as asylum, criminal advocacy and personal injury is likely to come under scrutiny, while the regulator also intends to publish a report on in-house solicitors this year.

Introducing the new approach, SRA chief executive Paul Philip said: ‘We expect the profession to deliver a high standard of service to those who need their help. That means we must make sure that solicitors and the employees of firms we regulate have up-to-date skills, knowledge and behaviours.

‘During 2023, we will further improve how we identify solicitors and firms who are not meeting our expectations and work with individual solicitors and firms where we have competence concerns. We will take enforcement action where necessary to protect consumers where standards fall short.’

In short, the days of ticking boxes are long gone. The SRA wants to see evidence that firms are taking continuing competence seriously (and documenting the evidence). Those that do not can expect a knock on the door, or even a dishonourable mention in the annual incompetence ‘hit parade’. The SRA is determined to show it takes competence seriously.

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