In November 2022 the SRA issued formal guidance on effective supervision to help those they regulate with supervisory responsibilities (solicitors and firms) understand their obligations and how to comply with them.  Services provided by individuals who are not regulated by the SRA are also included. The SRA have indicated that they will have regard to the guidance when exercising their regulatory functions.

The case for supervision

“Effective supervision of those delivering legal services plays a vital role in delivering good outcomes for clients, staff, and third parties, and in maintaining public confidence in legal services.” (SRA)

Regulatory position

Regulated individuals and firms are accountable for the actions of those they supervise.  The Code of Conduct for Solicitors, at paragraph 3.5, states that:

“Where you supervise or manage others providing legal services (a) you remain accountable for the work carried out through them; and (b) you effectively supervise work being done for clients.”

In addition, paragraph 3.6 requires that:

“You ensure that the individuals you manage are competent to carry out their role, and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations, up to date.”

The Code for Firms (paragraph 4.4), requires firms to have an effective system for supervising client matters. 

There is also a broader requirement to have effective governance structures, arrangements, systems and controls in place to make sure that the firm and its managers and employees comply with regulatory and legislative requirements (paragraphs 2.1(a) and (b)) which apply to them.  Ultimate responsibility for compliance lies with the COLP.  Under paragraph 9.1(b) it is their responsibility to take all reasonable steps to ensure both the firm, and its managers and employees, comply – and that includes supervision.   The SRA’s authorisation of firms rules require that at least one person who has practised as a lawyer for at least 3 years supervises an authorised body’s regulatory work.

Firms and managers should be mindful of the Statement of Solicitor Competence which says that solicitors should be able to disclose when work is beyond their personal capability, recognise when they are experiencing difficulties, seek and use guidance and support and know when to seek expert advice (section A3).  With workplace culture high on the SRA agenda following their Workplace Culture Thematic Review, the introduction of a new standard in each of the Codes of Conduct1 and revised guidance on the Workplace Environment, it is incumbent on firms and managers to foster a positive workplace culture and have the appropriate systems in place to ensure that colleagues can safely raise the matters highlighted in section A3.

Lexcel accredited firms are obliged to have a learning and development policy which must ensure that all supervisors and managers receive appropriate training (paragraph 4.3 of the Lexcel Standard for Legal Practices v6.1).  They must also have a procedure to ensure that all personnel, both permanent and temporary, are actively supervised.  Such procedures must include:

  • checks on incoming and outgoing correspondence where appropriate
  • departmental, team and office meetings and communication structures
  • reviews of matter details in order to ensure good financial controls and the appropriate allocation of workloads
  • the exercise of devolved powers in publicly funded work
  • the availability of a supervisor
  • allocation of new work and reallocation of existing work, if necessary.

A procedure is defined as “a written description of how an activity will occur within the practice. A procedure describes the steps that personnel are required to follow in order to complete an activity. At an assessment, a procedure can only be said to be complied with if the assessor can observe that the procedure contained in the practice’s documentation is in effective operation. All procedures must have a named person who is responsible for the procedure. They must also be reviewed at least annually”.

A supervisor is “a person(s) who is(are) of sufficient seniority and in a position of sufficient responsibility with the appropriate skills and experience to guide and assist others”.

So what does effective supervision look like?

The SRA advise that a risk-based approach is taken when considering what supervision arrangements to put in place.  Key considerations and factors which might influence the decisions taken include:

  • Who is going to supervise the work? It doesn’t need to be a partner, nor does it necessarily need to be the person’s immediate line manager but it should be someone with sufficient experience and familiarity with the work being undertaken by the person being supervised.   
  • How many people will that person supervise? The supervisor’s own capacity is relevant because if they have a full workload of their own (which is likely) then this will impact the number of people that they can effectively supervise.  Supervisors need to communicate with their supervisees sufficiently often to ensure that they have a clear oversight of the work being done (whilst it is being done, rather than after the fact), be readily available to support the supervisee and be able to provide assurance that legal and regulatory requirements are being met.
  • How much of the work is going to be supervised? Factors to consider include the experience and competence of the person being supervised, the type of work being undertaken (including its technical complexity and whether it is inherently higher risk because, for example, a high degree of judgement is required), the client’s circumstances and any relevant risk factors (eg. vulnerability) and the potential impact on the client if things go wrong.  The SRA suggest that the supervisor should have some knowledge of each matter being progressed by the person being supervised and/or should monitor a meaningful sample of the work depending on the risk factors.  Where work is a sample only it is important that the sample checked doesn’t only look at work the supervisee has asked to be looked at but also includes work that they haven’t asked about.
  • Consideration of which matters/documents will always be discussed. It may be that all high-risk work is reviewed, and that in relation to more routine work, non-standard letters are reviewed prior to being sent, or perhaps complex advice, drafts of particular documents which demand a high level of drafting skill or where the consequences of getting it wrong are substantial.  Supervisors should also be alive not only to the quality of the work, it’s accuracy and whether it meets the client’s requirements but also whether the firm’s internal policies and procedures have been followed and any relevant ethical and regulatory issues arising.
  • How often will they communicate? This should be agreed in advance so that the arrangements are clear, whilst still allowing for additional ad hoc conversations/help as required.  Again the experience and competence of the person being supervised will impact the level and kind of support that they need.  
  • How much will be in person/hybrid? If those carrying out the work are in a different location to their supervisor for a large proportion of the time consider whether support is easily accessible from other colleagues.  The SRA guidance also suggests looking at what other guidance, tools or standardised processes are available which might complement the support being provided (eg. screen sharing, virtual open doors, daily catch ups).  Some situations may call for a higher level of face-to-face contact.  An obvious example is where a trainee is being supervised but equally it could apply to a lawyer who is new in the particular role/dealing with an unfamiliar work type.  It may also be appropriate where previous problems have been identified and a more hands on approach is required.

The SRA are clear that appropriate supervision should be in place for everyone – and that includes partners and consultants.  Firms employing self-employed solicitors or consultants should also take note; the SRA’s July 2023 Risk Outlook highlighted risks associated with a lack of supervision and oversight of this group (although not necessarily for reasons of competence).

The SRA’s expectation for senior staff is that supervision “should” include consideration  of ethical and regulatory competencies plus standards of supervision and leadership.  The annual assessment of continuing competence 2023 will be the subject of a separate post but it is worth noting here that the SRA’s conclusion was that supervision levels, particularly in relation to more experienced and senior lawyers, were not where the SRA wanted them to be and that training in ethics, judgment and professionalism were lacking.

The role of the supervisee

Whilst the focus is naturally on the person supervising, the person being supervised has a role to play in ensuring that supervision is effective.  This includes:

  • Being open and honest about both capacity and capability. Letting the supervisor know when more help is required in terms of workload but also when aspects of the work are not well understood.  This will allow supervisors to assess risk more effectively.  That may mean a reduction in some areas of work to allow for greater emphasis to be placed on those aspects which are more challenging. 
  • Ensuring that supervisors are given sufficient notice of any deadlines and an appropriate summary of where help is needed. Emails with numerous attachments at short notice before an urgent deadline are not helpful.

Monitoring effectiveness

It should not be assumed that all lawyers are natural supervisors.  Whilst they may be technically competent and sufficiently experienced, they will still need to be able to mentor, provide support and deliver constructive criticism to fulfil their role as supervisor.  The SRA also stress that working in the same office does not itself ensure effective supervision.  There must be specific arrangements for the supervisor to review the work being done and opportunities for the supervisee to directly discuss it with them.  It is clear that a file audit will not, without a direct discussion, be sufficient to meet the requirement.

Procedures should be put in place to monitor how the supervision arrangements are working.  The regulatory requirement is for “effective” supervision and so putting arrangements in place without having a mechanism to ensure that they are working won’t meet that obligation.

An appropriate starting point is to ensure that supervisors are appropriately trained and, where there is an expectation that those seeking promotion will undertake supervisory responsibilities, it is not enough to obtain acceptance but to ensure that those being promoted possess the appropriate skills.

Other ways of measuring effectiveness might include:

  • Surveys of those being supervised;
  • A review of complaints and claims to see whether there is a connection between these and poor supervision;
  • Analysis of time recording records to ensure that supervisions is being carried out (it is acknowledged that this is not itself a measure of effectiveness but will evidence as a minimum that supervision is taking place as required);
  • Including supervision as a standing item at appraisals and check-ins.

Record keeping

The SRA guidance says that:

“Firms should be able to evidence the supervision arrangements they choose for each area of work, and the risk-based reasons for the approach they have taken.  This should include the firm’s arrangements for ensuring that supervision is effective.”

At firm level this could include a broad statement of intent or general policy around supervision but this should be backed up by bespoke arrangements on a team by team basis which set out the risk-based reasoning behind the specific decisions which have been taken in respect of that team/work type.  Having documented arrangements also ensures that both supervisors and supervisees understand what is required of them and provides continuity for all.  In addition to covering the key considerations set out above – who, how, when, what etc. record keeping at an individual level should also be covered not only to ensure that it is being appropriately carried out but also to ensure that learning points are picked up and disseminated within the team.  This might include:

  • Notes added to supervision time recording entries.
  • Summaries of one-to-ones where supervision was discussed.
  • Formal file review summaries.
  • Team meeting minutes where specific learning points were covered more generally.
  • Emails approving drafts – including where track changes are used including notes to provide feedback/an explanation of where changes have been made/rejected.

Readers should note that there are specific supervision requirements for trainees/those undertaking the SQE as well as in respect of specific areas of legal service.  These are outside the scope of this blog.

1 paragraph 1.5 in the Code of Conduct for Solicitors and 1.6 in the Code of Conduct for Firms 

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.