LSB competence review: “out-of-date” lawyers must go

LSB competence review: “out-of-date” lawyers must go

As the Legal Services Board (LSB) continues its review into continuing competence within the legal profession, the LSB has said that regulators must ensure lawyers do not operate with “out-of-date” skills or knowledge, the Board said within a recent paper titled “Ongoing competence – Emerging themes from consultation”.

The LSB consulted on a draft statutory statement of policy between December and March and are now working on a final version. The Board said it is “central to [our] ambition to reshape legal services to better meet society’s needs and provide consumers with fairer outcomes, stronger confidence and better services”, and they are clearly concerned that some practitioners are operating in an “out-of-date” fashion.

“While legal services regulators have comprehensive measures to ensure legal professionals are competent on entry to the profession, there are few routine, formal measures to ensure ongoing competence, besides the widespread adoption of continuing professional development (CPD)”, said the Board.

The statement on policy aims to be “an effective, proportionate, and targeted regulatory tool to secure the necessary outcomes regarding the ongoing competence of legal professionals”. Specific expectations include:

a) Set the standards of competence that those they regulate should have at the point of authorisation and throughout their careers.

b) Regularly assess and understand the levels of competence within the profession(s) they regulate and identify areas where competence may need to be improved.

c) Make appropriate interventions to ensure standards of competence are maintained across the profession(s) they regulate.

d) Take suitable remedial action when standards of competence are not met by individual authorised persons.

The draft policy has faced criticism on the basis of proportionality on two fronts:, the first being that “some respondents to the consultation argued that there is an absence of evidence of a widespread lack of competence, and therefore it would be disproportionate to expect regulators to introduce new measures”. The Board said:

“We do not consider this to be wholly accurate. Indeed, one of the issues we have identified is that none of the regulators is regularly making a comprehensive assessment of competence across its regulated community. We are seeking to address this gap through our proposed expectations in the draft statement. It is for regulators to gain an understanding of levels of competence, and then identify areas where competence may need to improve.

We consider from our analysis that there is a risk that, during practice, authorised persons’ skills and knowledge will become out-of-date. This might be due to changes in the profession and the wider world (for example, changes in consumer behaviour or technology).

Therefore, we consider that regulators should be alert to this risk and take suitable steps to mitigate this through the measures they adopt, so that competence issues do not arise over time and the risk of harm to consumers is reduced.”

Second, the LSB said “some respondents said that [the approach to the specific expectations relating to draft outcome] places an unreasonable expectation on the regulators to justify why they are not adopting each of the specific measures set out”.

In response, the Board said the measures are “based on a thorough programme of evidence-gathering and research, drawing on practices in the legal services sector and elsewhere”, though said “in response, we propose to amend the specific expectations in the draft statement to ensure that they clearly represent our policy intention”, adding that “regulators should be able to provide the necessary assurance to their regulated community, the LSB and the public that they have identified these measures on the basis of considered analysis of their evidence base, and that such measures are targeted and proportionate to risks”.

The LSB has set out an 18-month timeline for regulators to implement such a continuing competence regime. This has been met with concerns that it is not long enough, and the LSB has subsequently agreed to set out “milestones”.

“We consider that it might be useful to set some out some milestones and indicative timeframes by when regulators will achieve certain goals in meeting the overall expectations, such as creating an action plan, putting in place a competence framework or equivalent… Therefore, we propose to be clearer in the consultation response document about what we expect from regulators in the short and longer term.”

Jamie Lennox