In July 2021, as part of its review into ongoing competence in legal services the Legal Services Board (LSB) commissioned research[1] to gauge the public’s views on:

  • Whether the current arrangements gave sufficient confidence in ongoing competence; and
  • If not, what range of measures would give that confidence.

The research involved a panel made up of 23 members of the public and included a survey of a further 1005 members of the public.   As a result of that research and other work in this area the LSB launched a consultation[2] before issuing its final “Statement of policy – ongoing competence” on 28th July 2022.

Main findings of the research

  • The public expected lawyers to be competent, with 95% believing that they should have to demonstrate that they remain competent to do their jobs throughout their careers. 55% of people assumed that lawyers faced regular checks on their competence throughout their working lives;
  • Panellists found it hard to assess competence because they didn’t know what to look for. During the discussions it became clear that many assumed that checks were carried out by employers/regulators etc. who had the knowledge and skill to judge competence;
  • Panellists were surprised about the current arrangements for ensuring ongoing competence and the lack of consistent and mandatory requirements for different types of lawyers.
  • Panellists were concerned that existing arrangements left room for lack of competence to go undetected and unchallenged.

Ultimately panellists felt that the current measures did not give them sufficient confidence that lawyers remained competent throughout their careers.  Whilst two thirds of survey respondents had some confidence in the current arrangements 79% felt that regulators should introduce more specific rules.

The stated purpose of the new policy “is to set expectations of the regulatory bodies (regulators) in the interests of the public and consumers.  These expectations relate to ongoing competence, which in this context means the necessary and up-to-date skills, knowledge, attributes and behaviours to provide good quality legal services”.

The document requires regulators to pursue the following outcomes:

  • set the standards of competence that authorised persons should meet at the point of authorisation and throughout their careers;
  • regularly determine the levels of competence within the profession(s) they regulate, and identify areas where competence may need to be improved;
  • make appropriate interventions to ensure standards of competence are maintained across the profession(s) they regulate; and
  • take suitable remedial action when standards of competence are not met by individual authorised persons.

There is recognition by the LSB that regulators regulate different professions and an acknowledgement that they may adopt different approaches in order to meet the outcomes above.  That said, they also suggest that regulators should identify and use opportunities to collaborate with each other to promote consistency in the interests of consumers.

Regulators are particularly required to be alert to the risks to the public and consumers including where:

  • The consequences of competence issues would be severe;
  • Consumers are in vulnerable circumstances; or
  • The likelihood of harm to the public from competence issues is high.

The LSB expects regulators to demonstrate that they have met the outcomes and expectations set out as well as demonstrating that evidence-based decisions have been taken to determine which measures are appropriate.  It will be interesting to see exactly how regulators go about this, the level of collaboration which takes place and ultimately the level of consistency achieved.  The LSB expects regulators to have fully implemented measures by January 2024 and has asked for progress updates by January 2023.

The policy statement gives examples of measures that the regulators should consider in determining how to meet the outcomes and a stated expectation that these will be taken into account.  Examples include:

Outcome

 

Considerations to be taken into account

Setting the standards of competence
  • Core competencies required
  • Competencies around ethics, conduct and standards which ensure public confidence
  • Specialist competencies (depending on role)
  • Recognition that competence varies and factors such as role, area of practice, stage of career are relevant.

Determining the levels of competence
  • Information from regulatory activities eg. regulatory returns, complaints, thematic reviews
  • Information from supervisory activities eg. spot checks, audits, file reviews
  • Feedback from others eg. consumers, supervisors, intermediaries
  • Information from other agencies eg. Legal Ombudsman, disciplinary tribunals

Making interventions to ensure standards of competence are maintained
  • Communication and engagement, drawing attention to key risk areas
  • Promotion of reflective practice and use of feedback
  • Specifying training, learning and development requirements (including mandatory training)
  • Competence assessments
  • Reaccreditation models

Taking remedial action in response to competence issues
  • Consideration of appropriate measures eg. requiring a period of supervised practice or specific training to be undertaken
  • What evidence they will rely on to verify competence
  • Factors used to determine that remedial action is suitable to address the issues
  • Factors used to determine the most appropriate action
  • Follow up to prevent reoccurrence

LSB Chair Dr Helen Phillips said:

“Lawyers have a vital role to play in maintaining the fabric of our democratic society. The public must be able to have confidence that they have the right skills, knowledge and behaviours to protect our interests, enforce our rights and keep us safe. The changes introduced today will mean regulators provide greater assurance that their regulated professionals remain competent throughout their careers, not just when they enter the profession. 

Our work in this area concluded that no one can currently say, with any degree of confidence, how often competence issues arise among regulated lawyers. Addressing this gap will not just promote the interests of the public and consumers, it should also be in the interests of the profession and the fair and effective administration of justice. 

Each regulator will need to develop an evidence-based approach to implementing our policy that is suitable for their regulated community. We will monitor the regulators’ progress and continue to work with the sector to provide consumers with fairer outcomes, stronger confidence and better services.”

[1] Community Research (2021) Ongoing Competence in Legal Services: Report on Public Attitudes

[2] Legal Services Board – Draft statement of policy on ongoing competence – consultation paper

Disclaimer: Nothing contained within this document represents legal advice to any person, nor does it represent a comprehensive statement of the law. Accordingly, it should not be relied on as such.