As I discussed in Part 1 of this blog, the old CPD requirements are going. Instead, as from November 2016 (and from this November if you prefer) you must certify that you have the ability to perform the tasks required by your job to the expected standard. In particular, you must demonstrate continuing competence in four broad areas:
- Ethics, professionalism and judgement
- Technical legal practice
- Working with other people, including clients
- Managing yourself and your own work
Part 1 of this blog describes the basic competencies expected. This part discusses the ‘threshold level’. The Statement of Competence itself is generic and applies to all Solicitors. The threshold level is designed to set out the levels at which the competencies discussed in Part 1 should be performed. However the document is presented without explanation, comment, or instructions on how to use it.
The threshold level is a complex document: it is a matrix, describing the levels (1 – 5) in terms of the following:
- Functioning knowledge
- Standard of work
- Perception of content
- Innovation and originality
Threshold for New Solicitors
In a range of 1 – 5, newly qualified solicitors are expected to demonstrate threshold level 3. So, what skills then are required at that level?
A new Solicitor must identify the legal principles relevant to the area of practice, applying them appropriately and effectively, with an ‘acceptable standard achieved routinely for straightforward tasks. Complex tasks may lack refinement’. That is hardly surprising. ‘Acceptable’ is not defined, however. But for ‘Autonomy’, the person must ‘achieve most tasks and able to progress legal matters using own judgement, recognising when support is needed.’ That is asking a very great deal of a new Solicitor. Much will depend on the quality of the training contract and of the LPC that preceded it. Similarly, the innovation requirement ‘uses experience to check information provided and to form judgements about possible ways forward’ will depend on what experience has preceded qualification. Not every trainee is exposed to risk analysis.
Threshold for Experienced Solicitors
For more experienced Solicitors, levels 4 and 5 might apply, but the SRA does not state which level should apply in any case – that is for individuals to decide – or indeed whether they apply at all. If they do, and that is unclear, it would be reasonable to expect that somebody with say 10 years’ experience would be at level 5 – for example, for complexity, ‘deals with complex transactions intuitively and with ease: confident decision-maker’ is appropriate. And for ‘innovation’ the SRA’s requirement to ‘develop innovative solutions and ways forward in complex and unpredictable situations’ is a reasonable expectation.
But some of the descriptors appear rather odd. For autonomy – ‘takes full responsibility for outcomes of case or transaction’ – that surely cannot be right, for the lawyer is not responsible for the case outcomes. A witness might not come up to proof, or a client might ignore advice to settle, insisting on their day in court. Whilst you can predict a range of scenarios, you cannot strategise for every conceivable outcome.
For knowledge, ‘uses mastery of the area of practice and a broad background awareness of legal principles to develop and critically evaluate a range of options to overcome dilemmas and problematic situations’. Again, this imposes a very high standard. ‘Overcome’ suggests that there is always a solution: readers will know that that is often not the case. ‘Address’ would be more realistic.
And for less experienced lawyers, there is much to argue about in level 4, and whether the job requires level 4 or level 5. The statement only requires new Solicitors to be at level 3, adding that the other levels are provided for context.
And, where does the evidence come from? How can a COLP be sure that the Statements in their firm are accurate? Well-managed firms, particularly those working to the Lexcel standard, will have this information already from their active supervision processes, file reviews, monthly matter reviews, 1-1s, and annual staff appraisals.
Some firms will have their own assessment systems to determine level of competence; others will use the Threshold Statement. My concerns are that it is unclear whether the Threshold Statement applies to more senior lawyers, that some of the wording is unexplained, and further that the descriptors are occasionally unrealistic. If a client complains that the case was lost because the advocate was incompetent, or because the lender withdrew an offer of funding at the last minute, will a Statement signed off at level 5 (‘takes full responsibility for case or transaction outcomes’) cause problems?
Ambitious Solicitors will find much in the threshold levels to advance their careers; equally, less able Solicitors might find that their firm uses the threshold to manage their career expectations.
It’s disappointing that the SRA didn’t harmonise the Statement of Competence with the Threshold Statement. Lacking commonality of language and approach, the two don’t sit together that well. But there appears to be nothing to stop Solicitors adapting the Threshold Statement. It’s a very useful document in many respects – but exercise caution before use.
Enderley Consulting Limited