Shortcomings in the continuing competence training regime have prompted the Solicitors Regulation Authority (SRA) to undertake a consultation into the future of ensuring solicitors complete regular and relevant training.
SRA-regulated solicitors are required to maintain competence and professional knowledge as part of their obligations under the Code of Conduct for Solicitors.
The ‘continuing competence’ regime replaced continuous professional development (CPD) in 2016.
Previously, solicitors were required to complete and evidence 16 hours of CPD annually. Under the continuing competence regime, solicitors should keep professional knowledge and skills up to date, ensure ongoing understanding of legal, ethical and regulatory obligations, and ensure the individuals they manage are competent to carry out their role.
“We do not prescribe how a solicitor should keep their knowledge and skills and understanding of their professional ethical duties up to date,” the SRA explains in the consultation. “We could not prescribe an approach that would be meaningful for all solicitors given their distinct roles, practice areas, learning and development styles and requirements of their firm or employer.”
While many solicitors comply with the requirements, the SRA says there are also many who have not demonstrated they have carried out regular learning and development relating to ethics. Some have been unaware of, or have not taken account of, relevant warning notices and guidance when identifying their learning needs.
Three options have been proposed in the consultation: the introduction of a requirement to record learning and development needs and how they are addressed; the requirement for solicitors to complete mandatory ethics training annually; and a rule enabling the regulator to mandate learning and development where competence concerns are identified.
Currently there is no requirement for solicitors to record their training. The SRA has discounted the introduction of uploading or inputting evidence of reflections and training, an approach used by other professional services regulators, because it would require “significant IT development” outside the scope of its current organisational priorities.
The focus on ethics ties in with the Legal Services Board’s recently published statement of policy on upholding professional ethical duties, which outlines how it intends to strengthen lawyers’ ethical standards. The LSB said regulators will need to put “professional ethical duties” at the heart of how lawyers are expected to behave. Where there a conflict arises, lawyers must prioritise their duties to the court and the rule of law over their duty to their client.
The consultation introduces proposals for solicitors to participate annually in three-hour facilitated group discussions focused on ethical duties and dilemmas. The sessions must be interactive but could be delivered virtually. They should cover practice-based scenarios, factors affecting the ability to make ethical decisions such as personal difficulties and poor mental health, and developing confidence in ethical decision making.
Where specific practice issues are identified – either practice-wide or within specific practice areas – the consultation proposes the SRA could issue a practice note on the topic, requiring all solicitors to complete mandatory training within a certain timeframe, with regulatory sanctions for failure.
Any proposals would be effective from 2027/28 practice year, requiring full compliance by 2028 renewal.
