This article was first published in the May 2015 edition of Managing for Success, the magazine of the Law Society’s Law Management Section (www.lawsociety.org.uk/lawmanagement).
The changes to solicitors’ CPD, from an hours-based to a competency-based regime, are now well underway. Nicola Jones outlines the practicalities of compliance with the new system, and the benefits it can bring for firms and the legal sector
Nicola Jones is a specialist in learning and development, and a former barrister. She is a director at Athena Professional (www.athenaprofessional.co.uk). You can contact her via firstname.lastname@example.org or @NooJones
From 1 November 2016, new regulations governing solicitors’ continuing professional development (CPD) will come into force, and “time spent” will cease to be a measure of learning. For those who cannot wait that long, it became possible to dispense with the CPD hour on 1 April 2015. Under the new provisions, the Solicitors Regulation Authority (SRA) will focus on competence to practice, supported by evidence of a proactive approach to learning, and the application of learning, including reflection on the use of new knowledge and skills.
In this article, I discuss the implications of these changes, and suggest some practical steps to get underway with implementing them.
The timetable for change
1 November 2014 Accredited trainer status ended
1 April 2015 SRA competency statement & online toolkit published
Move to new CPD regime possible
1 November 2015 Wording of declaration of competence to be published
1 November 2016 First opportunity to make a declaration of competence
Competence-based approach mandatory
The benefits of changes to CPD regulation
Historically, CPD compliance has provided evidence of what solicitors ought to know about a topic. Under the new regime, there is an opportunity for learning to be identified in terms of how solicitors use what they know, not only with regard to legal expertise, but in terms of their broader skills – such as, in their work with clients and colleagues. Ultimately, the market expects service and value, as well as expertise, from its legal service providers. Letting go of the CPD hour offers an opportunity to embrace all that learning has to offer in terms of intellectual and professional excellence.
The change offers individual firms and the whole sector opportunities to:
- save money, through the use of work-based learning and other learning methods;
- invest in learning which really makes a difference to day-to-day work; and
- broaden the learning culture by recognising learning of many kinds.
Compliance with the competence statement
A competent solicitor (as defined in the competence statement) will be one who can meet the requirement of principle 5 of the SRA Handbook, to provide a “proper standard of service”. The indicative behaviours are described in the statement. It gives four key areas of activity it would expect a competent solicitor to address:
- management of others
- professionalism and ethics
- technical knowledge
The SRA’s toolkit on CPD states that “meeting the competences set out in the competence statement forms an integral part of the requirement to provide a proper standard of service”. However, there are no mandatory criteria in the statement. Competence in all of the elements is not expected. “Compliance”, in this context, means being able to evidence use of the statement as a guide to identify and address learning needs. It is to be used to assess whether the individual, and ultimately the whole firm, is in a position to provide a proper standard of service.
The SRA’s stated intention with regard to enforcement is that it will be using data from the annual declaration of competence to manage risk. If a firm’s or an individual’s conduct is called into question for another reason, then the SRA be investigating evidence of competence.
Accountability for compliance
Employers and individuals will make a declaration of competence annually as part of the application to renew their practising certificate (wording to be published 1st Nov 2015). The employer is responsible for ensuring a proper standard of service to their clients, including “training their staff to maintain a level of competence appropriate to their work and level of responsibility”. So, at a regulatory level responsibility for competence is shared. In business terms, it stands to reason that those firms who are able to develop and retain the best people are likely to fair best.
Practical steps to achieving compliance
- Make sure your appraisal system is fit for purpose and use it to identify learning needs, with reference to the aspects of the competence statement which fit with the work the individual solicitor is undertaking.
- Set up a simple way for individuals to record learning and reflection. A dedicated notebook for each person is adequate, although an electronic format might be preferred. Whatever method you use, you need to record: learning needs, with reference to relevant parts of the competence statement; how learning needs are to be addressed; what has been learned; and how it has been applied.
- Ensure individuals understand that they must take personal responsibility for their learning from the outset. In particular, be clear that learning records are a matter for each individual, not the hard-pressed compliance officer for legal practice
- Introduce learning records ahead of time if at all possible, so that you can sort out practical difficulties.
- Schedule quarterly meetings at which line managers discuss learning with their colleagues.
Relating learning to performance
This may sound like a simple idea, but it is a challenge to tackle the relationship between learning and performance, particularly when many firms rely on hard-pressed senior staff to line manage departments. Here are some steps which will take you beyond simply being able to comply with the regulations.
- Define what ‘good’ looks like in your firm
One way to do this is to draft ‘competencies’: short, specific statements which describe desired behaviours. If you already have competencies, they may need to be tweaked to reflect the competency statement.
- Identify learning needs
Look at performance in relation to your definition of what ‘good’ looks like. How does the firm match up to that definition as a whole? How does each department match up? Talk to people about their performance, and use appraisal data and line manager feedback to assess learning needs. There are some excellent learning needs analysis tools available, such as 360 appraisal, which can give a rounded view of individual and departmental performance.
- Take stock
Be open to the idea that learning may not be the answer! There may be organisational issues affecting performance, which no amount of training can overcome. In order to make sure the firm gets value for money from learning, it needs to be possible for the learning to be transferred to the workplace. If structures or personalities make that impossible, then address those issues.
- Define learning outcomes
Be clear about the purpose of learning: what is it intended to achieve? This step is often missed out, but it is a crucial element in the story of getting value from any type of learning investment, whether it is an informal reading exercise, a departmental seminar, or an off-site training event.
Clarity about desired learning outcomes enables you to work out whether a learning activity has been successful. Think about what your learners need, and how the learning activity will serve that need. Encourage each learner to get into the habit of identifying their personal learning outcomes, because it helps them to take responsibility for their learning and helps to structure reflection.
- Relate learning outcomes to learning activities
Under the new CPD regime, a wide range of learning activities will be recognised (see box [opposite]). This provides a brilliant opportunity to identify and articulate learning which routinely occurs in the workplace. It will mean firms save money, and it encourages a learning culture, including recognising new ways of deepening legal expertise, as well as other elements of professional conduct.
Freeing up the learner is a tremendous thing, if the individual understands the learning process and takes responsibility for their own development. Some people may, however, find being held accountable for their learning challenging. Some line managers may find it hard to manage resistance, so equip your people with the self-management skills they need in order for the business to get maximum benefit from learning.
Learning Activities are now broadly drawn, and include:
- face-to-face or ‘formal’ learning;
- peer-led seminars and discussions;
- file reviews;
- coaching and mentoring;
- delivering training; and
- using social media as a learning resource.
- Make reflection part of the learning process
Reflective practice is an important part of the learning process. Look for learning design which:
- engages with learners in advance;
- provides opportunities to consider application as part of the learning; and
- follows up the learning activity over time.
In this way, reflection can rightly be located within the learning process, rather than as a time-consuming adjunct. The opportunity for lasting impact on performance is also significantly increased if learning is revisited over time.
Focus on management capacity
At first blush it may seem that recognising a range of learning activities will make it easier to satisfy CPD regulations. However, it is clear that the SRA will be looking for evidence that specific learning needs have been identified and effectively addressed. Firms will need to rely on their department heads to deliver effective performance management, good line-management in respect of learning and, ideally, the ability to act as a role-model for the desired competencies. With that capacity in place, compliance with the new CPD regulations can, and should, become incidental to the effort of offering outstanding legal services.