2.147 Regulated continuing professional development (CPD) exists in many professions, but there is increasing concern about whether CPD is a sufficient guarantor of continuing competence. Attitudes to CPD have been explored in both the LETR research and a range of other studies and consultations, noted above.
2.148 There is consensus among respondents that there is value in undertaking CPD, though respondents have mixed views about whether CPD should be a regulated activity. Some respondents suggest that professionals should be trusted to do their job in their own way.
But there is also an acknowledgement that other professionals might need some motivation to keep up with changes (see Table 2.12 below).
2.149 Some respondents took the view that CPD was only carried out because it is required by the regulator:
There’s too much of it - I think it’s a waste of space quite frankly. We have to do it because we’re told to do it. I mean I think it’s ridiculous quite frankly. The amount of time I spend keeping up with stuff because I have to for my job but I do it on cases. That doesn’t count but - you know - I have to go along to series of lectures ...
Barrister
63 Although monitoring of the demographic actually obtaining access may, however, be useful.
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2.150 This quotation also corresponds with a clear view about the value of ‘on the job’ learning, ie, that, as a professional you are learning as you work. This perception is even more prevalent than average for CILEx members and the Bar (Table 2.11).
Table 2.11: On-the-job learning; reliability of the knowledge that legal professionals acquire through their day-to-day experience
Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).
2.151 There is a clear majority view in the survey that mandatory CPD is a reliable indicator of competence (Table 2.12).64 This is to be contrasted with the more detailed criticisms, set out below, about the effectiveness of CPD schemes as regulatory tools which in fact assure, rather than simply permit, continuing competence.
COMPLETEL
Y RELIABLE RELIABLE
SOMEWHA
T RELIABLE NO-EFFECT
SOMEWHA
T UNRELIABLE UNRELIABLE
COMPLETEL
Y UNRELIABLE MISSING
Barristers 0.3% 0.6% 0.6% 1.6% 1.6% 20.9% 56.6% 17.7%
Solicitors 0.0% 0.0% 0.6% 3.1% 1.8% 29.8% 49.4% 15.3%
CILEx members 0.6% 0.0% 0.6% 0.0% 1.2% 18.6% 46.6% 32.3%
Weighted Average 0.3% 0.1% 0.6% 1.7% 1.6% 24.1% 50.0% 21.5%
All Respondents 0.3% 0.3% 0.7% 1.9% 2.0% 24.2% 51.6% 19.1%
64 Weighted and unweighted data.
Table 2.12: Continuing professional development; reliability of training required by a regulator to ensure that legal professionals are competent in, and aware of developments in their field of practice
Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).
2.152 A majority of stakeholders seemed to agree that CPD schemes do not achieve all they are supposed to achieve. Many thought current schemes - with the exception of some provision by specialist groups - were ‘box ticking exercises’, concerned only with compliance and not the learning or enhanced practice that should result from undertaking the CPD activity:
... we need to think about actually where is it not actually working at the moment? And it’s in continuing education which, to be honest, everybody sees as something you tick the box and hope nobody examines you because you’ve done it as quickly as possible. That’s got to be made a serious issue.
Academic
... there is merit in thinking about whether CPD as it stands - the way it’s run at the moment - is really a valuable or a meaningful way of pursuing professional development. The truth is at the moment most of it is just getting the points. I think the new practitioners’ courses are different. They are more genuinely focussed on professional development. And that can continue ... But certainly my feeling about CPD in chambers is that it’s not really meaningful.
Barrister
The current inputs based model does not seem to promote the kind of activity that is beneficial in all cases. Whilst it is impossible to build a model that ensures that CPD will be valuable to all comers, a focus on what is being learnt from CPD, reflection on how to incorporate it into practice and planning for future activities, may all encourage a more productive culture. CPD has to be done in an effective manner; built in and reinforced over time and at a stretching level.
Law Society response to Discussion Paper 01/2012
COMPLETEL
Y RELIABLE RELIABLE
SOMEWHA
T RELIABLE NO-EFFECT
SOMEWHA
T UNRELIABLE UNRELIABLE
COMPLETEL
Y UNRELIABLE MISSING
Barristers 0.3% 7.4% 7.1% 6.4% 10.3% 36.3% 28.3% 3.9%
Solicitors 0.0% 1.5% 1.2% 4.0% 4.3% 28.2% 52.1% 8.6%
CILEx members 0.0% 0.0% 0.6% 3.1% 3.7% 17.3% 56.8% 18.5%
Weighted Average 0.1% 2.3% 2.3% 4.2% 5.4% 26.3% 48.6% 10.9%
All Respondents 0.4% 2.8% 2.8% 4.4% 5.9% 28.2% 45.6% 9.9%
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2.153 A compliance approach was perceived by some to be of benefit only to the CPD providers who charge fees for delivering such courses. Cost was perceived as a barrier for those in sole or small practice in particular or those who could not guarantee that employers would subsidise appropriate activity:
Unlike solicitors, barristers incur a double financial whammy when they enrol on a CPD course - the cost of the course and the loss of income by taking time out of practice to attend the course. I have not seen any plausible justification for increasing the number of CPD hours for barristers.
Barrister (online survey)
I think that Continuing Professional Development is essential in any legal profession and it should not necessarily be restricted to what is necessary to meet the requirements of CILEx or the Law Society. As a parent it isn’t easy to find the time, and the Local Authority I work for, like most, have budget restraints that severely affects training, but 16 hours of training a year is NOT enough to keep abreast of changes and expectations of a professional in practice today.
CILEx member (online survey)
2.154 Some respondents suggested that they found regulated CPD schemes irrelevant in helping to assure quality. Many of these respondents argued that it is the market which ensures that only good, effective professionals remain in practice, as those who do not meet clients’
standards will simply cease to be instructed.
2.155 As the kinds of activity demanded by existing CPD schemes were not perceived to be necessarily the most useful means of maintaining and enhancing competence, some respondents suggested that complete redesign was required.
I’d try and start all over again on how to devise a sensible CPD system ... I think people should look at how rigorous it should be, how it’s going to be assessed, but at the same time, make it accessible. I think it’s right that there doesn’t all have to be classroom activity but I’d say that much of it should be.
Academic
2.156 It was, in addition, suggested that regulators could do more to support those in sole practice or small firms where BME individuals might be over-represented. One solicitor suggested treating the whole of CPD from the perspective of risk analysis:
I would scrap CPD. I would scrap that completely and find a different way of doing that.
I think looking at what are key components that need to be checked and then the SRA actually being robust about doing that rather than saying you all tick a form and it’s a complete waste of time. So you either have something, and it is checked and followed through, or you just don’t bother with anything at all.
Solicitor
2.157 A range of more administrative concerns were also discussed. These included the pressures on compliance for, for example, those on maternity leave and those (eg, CILEx members) whose employers might prioritise the CPD of other employees, such as solicitors, above their own; and the need for separate accreditations to be sought from different regulators in organisations which included members of more than one profession.
2.158 Finally it should be noted that, in the online survey, increased CPD (likely to be envisaged as increased hours) was strongly opposed by barristers and notaries, while other groups overall were generally evenly split.65
2.159 The findings of the CPD review commissioned by the SRA and its recommendations (Henderson et al, 2012) fit well with the findings in this report. These suggest that there should be more flexibility in terms of what is counted for CPD, that external providers of CPD should be further monitored and regulated and that CPD should be better planned and tailored to individual needs. Recommendations to the SRA included:
• authorise independent schemes operated by employers, law societies or affinity groups;
• reconsider the purpose of accreditation (including the possibility of dispensing with the requirement of a proportion of accredited activity);
• require CPD providers to provide more detailed pre-booking information;
• require providers of public CPD to publish online ratings/feedback;
• require providers to report annually to the SRA;
• reconsider the provision that employers are not required to pay for CPD or to release time;
• retain a minimum hours requirement, but of no more than 16 hours;
• require documentation of a learning cycle;
• require individuals to log all their CPD activity, not just the minimum to satisfy regulation;
• implement an auditing process of individuals’ records;
• implement a progressive enforcement and sanctions system;
• review the Management Course Stage 1 for relevance;
• consult the profession more widely on the need for any compulsory CPD components (eg, ethics).
Table 2.13: Practitioners should be required to do more CPD
Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).
65 Weighted and unweighted data. A survey of CPD for IP attorneys (IPReg, 2012) produced a 77% response that their 16 hours requirement was ‘about right’. In the LETR will writers’ survey, the current level of CPD activity was considered to be sufficient to maintain competence by over two-thirds of respondents.
COMPLETEL
Y AGREE AGREE
SOMEWHA
T AGREE NEITHER AGREE NOR DISAGREE DISAGREE
COMPLETEL
Y DISAGREE MISSING
Barristers 1.0% 28.4% 25.5% 18.7% 5.5% 8.4% 8.7% 3.9%
Solicitors 0.9% 5.0% 13.0% 16.8% 14.9% 20.2% 17.1% 12.1%
CILEx Members 0.6% 5.0% 11.9% 21.9% 16.9% 17.5% 18.8% 7.5%
Weighted Average 0.8% 10.0% 15.3% 18.9% 13.5% 16.7% 15.8% 8.8%
All Respondents 1.2% 11.6% 15.7% 16.8% 12.3% 15.3% 17.2% 9.8%
SOMEWHA
T DISAGREE
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2.160 The BSB Review on CPD arrived at broadly similar findings, but its conclusions were a little different, suggesting the BSB should:
• increase the range of approved CPD activities;
• correspondingly increase the number of CPD hours which established practitioners must undertake each year;
• raise the standard of record-keeping;
• simplify the system of reporting and
• simplify enforcement of the CPD regulations.
2.161 The proposal for increased CPD hours in particular has met with strong opposition from the profession, and this was reflected in responses from the Bar to the LETR online survey.
The BSB has commissioned a CPD Steering Group to follow-up and implement the CPD Review, and this is expected to report its final conclusions in Spring/Summer 2013.
2.162 The concurrent IPS study evaluated a number of other CPD schemes, drawing conclusions about both inefficiency in purely ‘inputs’ schemes and the difficulty, for a regulator, of effectively measuring pure ‘outputs’. The new scheme, to be implemented in 2014, was developed by reference to a revised definition of CPD aligned to the regulatory objectives of the LSA 2007 related to the public interest and the protection of consumers. It moves away from input-led approaches and adopts a cyclical model involving ‘reflection, planning, action and evaluation’. In the annual cycle, each member must record nine activities, of which at least one must relate to ethics. No activities will be accredited by IPS and both planned and unplanned66 learning is accommodated in the scheme. The new model invites individuals to refer their planning to the competency framework to be used for the period of qualifying employment that is a precursor to application for Chartered status.
2.163 Although the LETR research data addresses issues across the sector, a number of themes in these investigations align very closely with the findings and conclusions of the reviews by the individual professions: cost; ‘box ticking’ compliance; exclusion of relevant activity;
differential impacts on sole practitioners and small groups.
2.164 Issues that arose clearly in the LETR research data included the extent to which CPD activity should be permitted outside one’s own specialism and detailed discussion of revalidation or re-accreditation. Some respondents, including the Legal Services Consumer Panel (LSCP), favoured re-accreditation and some in-house lawyers were already very familiar with substantial internal procedures for appraisal and review. Others were more wary, with fears about cost and what accreditation might entail. They were also concerned that re-accreditation might duplicate other processes and about who, appropriately, might carry out such a review.
I think re-evaluation is a problem. As somebody who deals with professional negligence claims against solicitors, some of the things you see happen are awful. And you think if there was some sort of re-evaluation process there in terms of what they were doing, would it have made a difference, I don’t know. But the thought of trying to put that on the profession, I would have thought would go down like a lead balloon.
Solicitor
66 By way of critical incident analysis.
2.165 Given its sector-wide remit, the research investigated both the possibility of increased cross-recognition of activity across the sector and the viability of a single sector-wide scheme (present in some non-law disciplines, see Literature Review, Chapter 5). There was some support for the latter.
This might be worth considering, depending on how any new model was derived and implemented. Needs vary tremendously and so any overall scheme would need to be flexible enough to accommodate this - which may in turn lead to such a scheme being too all-embracing and vague.
BSB response to Discussion Paper 01/2012
This is a sensible suggestion in so far as the future deliverers of legal services will be less defined by their badge and more by their demonstrable competences. Nonetheless CPD should recognise the link between the scope of competency (perhaps this is defined by professional status) and the CPD requirement placed upon them.
CILEx Law School (formerly ILEX Tutorial College) response to Discussion Paper 01/2012 2.166 The question of mandatory content was pursued, including, but not confined to
reinforcement of ethics and equality and diversity training67 as well as management training and specific CPD for those intending to practise in Wales. The issue of mandatory content is discussed in further depth in Chapter 5.
Summary
2.167 The perceived inconsistency of standards across the system is a challenging issue for the LETR, particularly in relation to the QLD and LPC. Such consistency problems are a function of scale given the number of different providers of the QLD and the LPC, and can be difficult for regulators to address in a proportionate fashion without risking the benefits of the system. Potential solutions to this critical issue are considered in Chapter 4.
2.168 CPD also stands out as an important issue. The extent to which CPD schemes adequately assure competence is an open question, though it is noted that many of the regulators are already working on changes.
2.169 The cost of training coupled with the oversupply of qualified persons may not be a regulatory issue. However the concomitant, critical issue of access is of regulatory concern and needs to be addressed in the complex balance to be made between diversity and business risk.
Conclusions
2.170 This chapter has focused on three aspects of current LSET: firstly the structure and content of its main programmes; secondly, the knowledge and skills that are considered important by the sector, and the knowledge/skills gaps that are thought to exist: and, in the final section, the perceived strengths and weaknesses of the system of LSET itself.
67 A number of stakeholders, it should be noted, identified voluntary or mandatory diversity training already taking place in their own profession or field of practice.
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2.171 The chapter highlights the relative complexity of a system that operates through a multiplicity of discrete individual training systems with a range of content and objectives. Two
fundamental axes are identified around which current models of training for legal services are constructed:
• axis (i) those that frontload foundational knowledge and skills in an academic
environment and those which embed training, to varying degrees, within the workplace, and
• axis (ii) those which start from a broad knowledge-base as against those which develop a relatively narrow specialism from the outset.
2.172 Despite these different operating environments, there is a relatively high level of agreement on many of the key knowledge and skills areas required, with a high degree of support for the existing Foundation subjects at QLD and GDL levels. Many of the traditional foci of education and training are perceived still to be relevant and valued, and there is concern that the core functions of each stage should not be altered by adding more or different objectives.
2.173 There was a high level of consistency in the skills and tasks utilised as part of solicitors’
work in 1991 and 2012 and in the relative proportions of time spent on each of these.
However the data offers some clear indications of both knowledge and skills gaps, and areas for improvement. These arise across the training regimes considered. Key amongst them is: professional ethics and legal values, commercial awareness, and, less consistently, commercial law. On the skills front, the need to enhance writing skills and communication generally is widely recognised, and drafting deficiencies tend to follow on from that
(particularly in the context of the LPC). There is a perceived need to enhance legal research at all stages, and to maintain an adequate focus on communication and related ‘soft’ skills.
2.174 The final section of this chapter looked at the assurance of quality through consistency of standards, issues of mobility, progression and access, and the effectiveness of CPD. These themes are linked by the concerns for quality in LSET, and the need to ensure that LSET has the flexibility to respond to a changing market environment. The system needs to be able to identify, attract and retain the best for every role, assure their continuing competence, and provide a reasonable degree of workforce mobility across, as well as within, regulated and related occupations.
2.175 There is no evidence that the system, or any one professional regimen, is fundamentally
‘broken’. Indeed there is substantial evidence of the strength of the system, both from domestic and international viewpoints. However, consistency of standards is a challenging problem for some training routes. As already recognised by regulators, CPD is an area in need of substantial attention.
2.176 At the ‘grassroots’ and among those, mostly at the early stages of a legal career, who feel that the system for qualification as solicitors and barristers does not work well for them there is a different view. This largely reflects their dissatisfaction with cost, and the difficulties of access to the profession. Inevitably, some will spend considerable sums in pursuit of a career that they are never likely to achieve. The impact of such a waste of human and economic resources, and its particular consequences for the development of a diverse and socially representative profession is a growing concern. Elements of this problem are susceptible to regulatory influence and others may not be. There is a complex balance to be sought between satisfying the business needs of the future legal services sector (to be addressed in the next chapter) and seeking to achieve equality of access to all.
References
ACLEC (1996). First Report on Legal Education and Training. Retrieved from http://www.ukcle.
ac.uk/resources/he-policy/aclec/
Bar Council/Bar Standards Board (2012). Bar Barometer 2012. Retrieved from http://www.
Bar Council/Bar Standards Board (2012). Bar Barometer 2012. Retrieved from http://www.