THE NEW CPD / CONTINUING COMPETENCE REGIME: WHERE NOW? Paulo Karat April / May 2015

Coverage 1. The Competence Statement 2. The Continuing Competence Toolkit 3. The Annual Declaration & the PCRE 4. Systems & Structures 5. Challenges & Concerns 6. Reflection: signs of new life in an old L&D idea?

Approach 1. For summary of the basics, see ‘background slides’ 2. Today, focus on some key issues / questions arising 3. Opportunities for discussion and sharing perspectives

1. The Competence Statement How do we interpret the Competence Statement? How are solicitors expected to engage with it? Mapping against the Firm’s competency framework?

1. The Competence Statement How do we interpret the Competence Statement? ‘Competence Statement Relevance & Level Outline Analysis’ handout What about the ‘Threshold Standard’ and ‘Statement of legal knowledge’? Consultation on qualification framework in the autumn, but… SRA forming its views now and “already engaging with stakeholders” Are you one of them?

1. The Competence Statement How are solicitors expected to engagement with it? ‘Scheduled engagement’ L&D reviews (Development Plan) Prep for appraisals (mid/end year) On current Annual Declaration, at the very least they engage once a year

1. The Competence Statement Mapping against your competency framework? Will it work? Won’t know until you try! Should you? Annual Declaration? [See later] ‘Visibility’ / clarity? Alternative is to refer to both Firm’s Competency Framework = ‘main event’ SRA’s Competence Statement = ‘belt and braces’ / ‘wash up’ to flush out any issues not otherwise covered by Firm’s framework and to facilitate Annual Declaration [see later]

2. The Continuing Competence Toolkit What does it say we should be doing? Regulatory status?

2. The Continuing Competence Toolkit What does it say we should be doing? Reflect Identify L&D needs Plan Do Record & Evaluate

2. The Continuing Competence Toolkit Regulatory Status? “The information in this resource is not mandatory. It is up to you how you use the information to help you structure, focus and address your learning and development” Continuing Competence Toolkit home page

2. The Continuing Competence Toolkit Regulatory Status? “We expect you to: Reflect on the quality of your practice by reference to our Competence Statement to identify your learning and development needs Plan and address your learning and development needs Record the above information so that […] you can demonstrate to us that you have taken steps to ensure your ongoing competence Failure to demonstrate that you have reflected on the quality of your practice and addressed any learning and development needs may be an aggravating factor in any action we may take” Continuing Competence Toolkit: ‘Useful information’ page

3. The Annual Declaration & the PCRE What will it say? Will there be one that’s linked to PCRE? Will there be an Annual Declaration at all?

3. The Annual Declaration & the PCRE What will it say? Originally, a ‘Key Feature’ SRA Position Statement suggested would be something like… “I have considered my learning and development needs and taken measures to maintain my competence” Was due to be published on 1 April but… “We will be making an announcement on the role of the annual declaration […] in advance of the start of the new CPD year 1 November 2015”

3. The Annual Declaration & the PCRE Why the delay? Holding Position declaration.page Language would permit a departure from original draft annual declaration…

3. The Annual Declaration & the PCRE Holding Position (Limb 1) “The regulatory obligation for solicitors is that they must comply with principle 5. Any declaration will be related to that obligation and to the steps solicitors take to ensure they comply with it.” Principle 5: You must provide a proper standard of service to your clients 2.9 You should e.g. provide a proper standard of client care and of work. This would include exercising competence, skill and diligence, and taking into account the individual needs and circumstances of each client 2.10 For a solicitor, meeting the competencies set out in the Competence Statement forms an integral part of the requirement to provide a proper standard of service.

3. The Annual Declaration & the PCRE Self-certification by solicitors of their own competence / compliance with Competence Statement?

3. The Annual Declaration & the PCRE Holding Position Limb 2 “Solicitors who move to the new approach will be required to reflect on the standard of their work by reference to the Competence Statement for solicitors and to address identified learning needs. Solicitors who do this will be in a position to make any necessary declaration”

3. The Annual Declaration & the PCRE Annual Declaration could explicitly refer to solicitor having reflected against the Competence Statement (rather than just ‘considered learning and development needs’)? Annual Declaration could explicitly refer to solicitor having identified their learning needs and addressed them (rather than just ‘considered learning & development needs’ and ‘taken steps’)?

3. The Annual Declaration & the PCRE Holding position sufficiently ambivalent to create uncertainty If it is to be linked to PCRE, risk in opting in early before having seen the final form of wording? Remember, can opt-in to new regime for the 2014/15 CPD year as late as October 31 this year…

3. The Annual Declaration & the PCRE Will it be linked to PCRE? Will there be an Annual Declaration at all?

4. Systems & Structures ‘What firms do’ v possible gaps

4. Systems & Structures What firms do Mid- and end-of-year appraisals Development Plans CPD records

4. Systems & Structures Potential gaps ‘Ongoing’ reflection / identification Reflective Development Records (compare CPD Record template to new Development Record template)

4. Systems & Structures Possible gaps Reflection: what, and when? After ‘CPD’ (to identify & capture the key takeaways / relevance to practice) ‘Transactional’ (ad hoc, reflecting on work currently doing or have recently completed) ‘General’ (ad hoc, considering work generally or a particular type of job done often) ‘Scheduled’ (e.g. for Development Plan, quarterly reviews and/or as part of mid- and end-of-year appraisal process) In a reflective ‘Development Record’ (i.e. not just the ‘what’ and ‘when’, but the ‘why’ and ‘so what?’)

5. Challenges & Concerns “Lawyers thinking that CPD is now optional, or acting as if it were” “Attendance levels” “Getting our lawyers to take the SRA requirements seriously” “Whether we could be penalised for not having put in place a perfect system” “What does the ‘acceptable minimum’ look like?”

5. Challenges & Concerns “Lawyers thinking that CPD is now optional, or acting as if it were” Current 16 hours requirement in place since 1985 Mindset rooted around doing CPD because they have to get the hours SRA is now saying they have to do only the CPD they need to remain competent This might not be very much So on one level, those lawyers are absolutely right to think ‘CPD’ is ‘optional’…

5. Challenges & Concerns “Attendance levels” … as such, seems almost inevitable that attendance levels for ‘traditional’ CPD will drop Challenge: develop a new set of ‘rules’ / a new CPD ‘contract’ with solicitors? Firms as the employer takes the place of the SRA in telling solicitors what they have to do… … whilst being honest about what they don’t have to do? A different classification system for CPD, with internal consequences may be needed?

5. Challenges & Concerns “Getting our lawyers to take the SRA requirements seriously” Looking at it the wrong way: get them to take your requirements seriously…

5. Challenges & Concerns “Getting our lawyers to take the SRA requirements seriously” Identify the regulatory requirements / risk at their level as regulated individuals Identify the regulatory requirements / risk at your level as the regulated entity Identify: minimum requirements > expectations > aspirations Develop a clear consequences system and then enforce it This will require senior buy-in

5. Challenges & Concerns “Whether we could be penalised for not having put in place a perfect system” No Regulatory requirements narrow There is no perfect system Toolkit ‘expectations’ are open to your interpretation

5. Challenges & Concerns “What does ‘the acceptable minimum’ look like?” Will depend on the individual: An NQ may need a lot of CPD hours/support/interventions to ensure they are competent The minimum for a senior solicitor may be to keep up to date with legal / practice updates The key is that their level of activity must be capable of objective justification before, during and (not just) after the event

5. Challenges & Concerns NB: In-House departments / solicitors Different dynamic Principle 5 not relevant at the entity level No COLP Ability to ‘enforce’ CPD even more about internal messages / consequences than it will be for regulated entities

6. Reflection: signs of new life in an old L&D idea? The ‘Reflective Practitioner’ (Sch Ö n) A ‘Good Thing’ Underpins SRA approach to Training Contract Record and reflective focus in new CPD regime But a tired concept - seen as ‘soft’ and driven by ‘worthy’ academics and L&D types No ‘hard-edged’ relevance or benefits perceived for practitioners or business Time to reconsider…

6. Reflection: signs of new life in an old L&D idea? ‘Learning by Thinking: How Reflection Aids Performance’ Harvard Business Review Working Paper March 2014 ‘Real world’ Field Study: graduate trainees in large BPO company in India Re-opens ‘Reflective Practice’

6. Reflection: signs of new life in an old L&D idea? 15 minutes spent capturing reflections at end of each day resulted in 23% better performance on key metrics than those who didn’t End of training assessment tests and operational metrics after ‘hitting their desks’ Highly compelling in a competitive sector where scope for improving lawyer productivity is otherwise limited

Conclusions & any questions? Thoughts? Opt-in? (‘Survey’)