The new Competence Certificate for Solicitors came up the other day. I was training in-house lawyers in the relationship between ethics and the UK legal services regime. During the session, we talked about the Competency Certificate proposed by the SRA. All knew it was in the pipeline. Some understood it will replace CPD, but their understanding was sketchy.
The Competency Certificate is the most radical change in professional qualification since the introduction of CPD. It will come into full effect in November 2016. The SRA published a consultation paper in the early part of the year and has just approved the form of Certificate, It will be posted on the SRA website in April.
At one level, we should applaud the move. Abolishing the formal 16 hours CPD for solicitors regardless of experience or academic ability is good. Training will now have to be structured around individual lawyers’ training needs, instead of sheep dipping the profession in training. One size does not fit all.
The downside – and there is one – is that the regulatory burden will get heavier for individual solicitors and their managers. To stay on the road – to continue the metaphor – you will need a certificate saying you are competent to do your job. Competency covers ethical understanding, judgment, legal expertise and knowledge. The proposed scope of the certificate is broad, detailed and subjective.
Take, for example, the area of the certificate dealing with ethical behaviour. As proposed you will be required to be certificated as being competent to:
“Act honestly and with integrity, in accordance with legal and regulatory requirements and the SRA Handbook and Code of Conduct, including:
- Recognising ethical issues and exercising effective judgement in addressing them;
- Understanding and applying the ethical concepts, which govern their role and behaviour as a solicitor;
- Identifying the relevant SRA principles and rules of professional conduct and following them;
- Resisting pressure to condone, ignore or commit unethical behaviour; and
- Respecting diversity and acting fairly and inclusively.”
All excellent stuff, but on top of the requirements of the Principles, Code of Conduct and authorisation requirements, it means we are going to have to police ourselves and any solicitors we manage even more to make sure they meet the standards.
As the professional rules extend into solicitors’ private lives, we have to take that into account. For example, how do you deal with a solicitor who is involved with a group that uses direct political action against what it sees as unjust law? Our duty is to uphold the rule of law.
We have a duty not to bring the profession into disrepute. That is not at issue. The problem is that those who regulate the profession have neglected in-house lawyers for years. The Code of Conduct is structured for the private practice world. We pose no threat to the “consumer” (“clients” in old terms). But the rules are still dominated by protecting clients and their assets. Problem areas for in house lawyers – such as retaining independence and conflict of interest – do not receive enough attention or guidance.
Meanwhile the Legal Services Board currently has a discussion paper issued entitled “Are regulatory restrictions in practising rules for in-house lawyers justified?”. The point that it makes is that in-house lawyers are drawn from all the different areas that have approved regulators, but that there is no consistency between their rules.
What are in-house lawyers to make of all of this? In the short term, those who are solicitors will need to get to grips with the cumbersome Certificate. In the longer term is a separate regulator for in-house lawyers on the cards?
Ian will be presenting his course “Legal Regulation & Ethics for In-House Lawyers” on further occasions. For more details, click here.