Response to the ‘Training For Tomorrow’ Consultation Paper

Training for tomorrow

1^st April 2014

By Email

Dear Sir/Madam,

Response to the ‘Training For Tomorrow’ Consultation Paper

1. Introduction

We welcome your review of the solicitors’ CPD scheme.  Your review is timely given that the profession is changing so rapidly.

Although we are the professional body for paralegals (www.theiop.org), we are nevertheless responding to your consultation because:

• Many of our members work in solicitors’ firms. Your proposed reform presents an opportunity to ensure that paralegals, at the very least, get guaranteed access to basic CPD; and
• In large measure we benchmark our CPD programme against yours.

2. Scope of Your Consultation

Before responding to your specific consultation questions, we wish to make a separate recommendation - namely that a mandatory CPD requirement be extended to encompass all fee-earning staff in SRA regulated entities, not just solicitors.

We make this recommendation because:

• If solicitor fee-earners need CPD, then other fee-earners do too. The old justification that non-solicitor fee-earners were very junior staff, closely supervised by solicitors is not sustainable.
• In our experience, too many non-solicitor fee-earners receive insufficient (and wildly inconsistent) training;
• The phenomenal growth in the number, and seniority, of paralegal fee-earners working in solicitors’ firms means they need to be treated as autonomous fee-earners with their own clients and files. This is especially so if the mounting anecdotal evidence that paralegals are replacing trainees and junior solicitors proves to be accurate;
• The successful introduction of alternative business structures means that ever more SRA regulated entities will be using a multidisciplinary fee-earner workforce; and
• The issue also arises in more traditional solicitors’ firms. As practices seek to diversify their services, they are using ever more non-solicitor fee-earners.

In his interesting Forward on page 2 of the consultation paper, Martin Coleman rightly defines CPD as an issue relating to competence. We also note that your desire to ensure the delivery of quality legal services is underpinned by paragraph (4) on page 4 of the consultation paper, where you describe yourselves as a “public interest regulator.”

However, competence is only relevant to the extent that it helps ensure that solicitors’ clients receive an acceptable standard of service. Cumulatively, (a) – (e) above indicate that the best way of improving competency; standards of service delivery and the client experience generally is to address CPD for all fee-earners, not just those with a particular job title, because such titles are increasingly meaningless from the clients’ perspective. For example, it is common to find a solicitor and a paralegal in the same firm doing the same client facing, fee-earning work, but:

• The solicitor typically had to successfully complete six years of formal training then successfully complete the PSC and then do annual CPD. Further s/he is subject to an entire edifice of personal regulatory diktat focused on the quality of the work s/he does. All of these things are considered essential for the solicitor to be a fee-earner.
• The paralegal typically has no formal training, may never have even heard of the PSC, is not required to do CPD (unless a member of our Institute) and operates almost entirely free of personal SRA regulation. None of these things are considered important for the paralegal to be a fee -earner.

Any logical analysis of the above situation would lead one to conclude that either the solicitor is over-trained/regulated or the paralegal under-trained/regulated.

We tend to the view that it is the paralegal who is under-trained/regulated and thus priority be given instead to extending CPD to paralegals and other non-solicitor fee-earners not already subject to a CPD programme.

The justification for not extending CPD to paralegals and other non-solicitor fee-earners is that the employing SRA regulated entity is obliged to ensure that such persons are adequately trained and adequately supervised.  However:

1. It is widely accepted that both obligations are all too often honoured in the breach – in other words numerous employers are not meeting their obligations and you are not enforcing or monitoring compliance of those obligations – tick box or otherwise ;
2. The current CPD scheme was introduced in 1985 at least in part because of fears that solicitors were not voluntarily meeting their CPD obligations. The current reforms have been suggested, at least in part, because it is felt that too many solicitors are ‘gaming’ the system by honouring the letter, not the spirit of the CPD scheme, despite the CPD obligations clearly being of benefit to their professional and commercial lives.

We see an apparent contradiction in not trusting the profession to meet personal training obligations, but trusting it wholeheartedly to meet the training needs of junior staff- despite a long and clear history of training being denied to such staff.

Turning now to the consultation questions:

Question 1: Do you foresee any impacts from option 1, positive or negative, that we have not already identified?

We regret that, despite having a certain theoretical elegance, this option will not work in practice. This is unfortunate, because this option is recognition of the rapidly changing nature of practice and a bold attempt to accommodate that change.

We do not think it will work in practice because:

• Many solicitors work in environments where getting time off to do CPD training and/or to get budget allocation to attend courses is extremely difficult. These may be in-house counsel, or solicitors working for SRA regulated entities that are either parsimonious or begrudging of all non-fee earning activity.  For these many solicitors, the very fact that they cannot continue to do their job unless time/budget is made available to meet the mandatory CPD requirement to attend courses to get CPD points is the only thing that gets them the required time/budget. If you replace that attendance requirement with an amorphous alternative then the problem will be thrown onto the shoulders of the individual solicitors. Their solutions are unlikely to achieve the desired increase in either hours or quality.
• The time and budgetary pressures that lead so many solicitors to either game the current system or rush to get any points they can at the 11^th hour are increasing, not diminishing. Option 1 would just increase their ability to game the CPD system and remove a compliance motivator.

As a side observation, we noted that when the above two points were raised at one of the T4T roadshows, you gave the impression that the problem was largely one of misunderstanding. You appeared to suggest that parsimonious/begrudging employers referred to above had simply failed to understand that CPD made good commercial sense. Your suggested resolution was that you might have to work harder to “get that message out”.

Like most attendees at the roadshow, we do not agree with either the analysis of the problem nor your suggested solution.

We believe that CPD training is, regrettably, low on the priority list for many employers. So therefore switching to a more relaxed regime is going to give those employers the ability to push it yet further down the priority list. What option 1 will not do is change the mind-set of indifferent employers, nor alleviate the financial and time pressures which have led to CPD being so widely disrespected.

• We foresee conflict between individual solicitors and their employers. Who will create the training plans, and what if individual solicitors disagree with their employers about training needs/what activities constitute CPD activity? Who will be responsible for supervision and “sign off”?
• Paragraph 21 on page 9 of the consultation states “Many entities and individuals will welcome the approach set out in option 1 for the flexibility and freedom that it provides and the reduced regulatory burden…”

‘Many’ is not the same as ‘most’. We foresee larger entities which employ training professionals possibly getting benefit. However we see this being a new and onerous regulatory burden on in-house counsel, sole practitioners and smaller organisations that do not have the requisite pedagogical skills.

Where and when are they to acquire these skills and in light of mounting concerns about regulatory overburden, is such acquisition really the best use of their time?

This burden could be all the greater because, like outcomes focused regulation, there is a good chance that it will be perceived as “We won’t tell you what is expected, but we’ll punish you if you get it wrong”. We acknowledge that perception is highly debatable, but judging from a variety of online solicitor forums (such as the Law Gazette) it is widely held one.

• We are concerned that the lack of hard guidance provided to practitioners when interpreting their responsibilities under outcomes focused regulation will be replicated by option 1. It is very common for solicitors nowadays to undertake a variety of roles. A single solicitor may practice litigation in his/her firm; be a non-executive director of a client and be a volunteer adviser at Citizens Advice. Creating a credible training plan for that person will be a large and difficult job and may require them to do three lots of CPD and leave them open to sanction if they get it wrong because it is not an area that they have expertise in. The same applies to a general practitioner – how many areas does s/he have to plan/train for?

One of the benefits touted for option 1 is that it is non-prescriptive. We think that this is not entirely accurate. It seems that the prescriptive element is simply pushed up the line to the “audit/investigation” stage. Right now solicitors have the safe harbour of 16 hours. That is prescriptive. If on investigation you disagree with a solicitor’s genuine best guess of, say, 20 hours, then you at that stage introduce the prescriptive amount - when it is too late for the solicitor to resolve the matter.

• We are worried about the enforcement provisions. The impression given at the said T4T roadshow was that failure to comply would not be something enforced in isolation. Instead, apparently, if pulled up on another matter then CPD compliance would automatically be looked at and “added to the charge sheet” if appropriate. If this is indeed the enforcement model then it appears to us to be ineffective. If a solicitor is already in trouble about something else, then failure to comply with CPD is unlikely to weigh much on his/her mind, rather like the person charged with bank robbery also getting a parking ticket for parking on double yellow lines outside the bank.

One of the complaints in the consultation paper was that the current regime is a “tick box” exercise. We think this is undervaluing the scheme and unintentional disrespectful of solicitors. We believe the vast majority of solicitors would think it a very serious matter to lie to you on any subject, including CPD attendance. In other words, right now making a formal written submission to you which is knowingly deceitful could potentially end that solicitor’s career is more than just a “mere” tick box exercise.

• An additional problem with the above-mentioned pressures of time and budgetary restraint is that even if the quantity (hours) increase, the quality may not. One clear advantage of requiring solicitors to attend SRA accredited courses is that the said courses are of a certain standard. There is at least some training at a recognised standard taking place.

• We believe that there is a good chance that option 1 will have the unwelcome side-effect of decimating the current CPD course market. CPD course providers are already suffering. By removing the mandatory course requirement we think it likely that many CPD providers will not survive. At a time when we need more courses, not fewer, it would be a seriously retrograde step to implement a scheme that is likely to lead to a collapse in the number and variety of quality training courses available. Again, going back to our point at the outset - employers are obliged to train the ever growing legions of paralegals and other non-solicitors: who is going to do this if not the current CPD providers?

In conclusion, we see the good intentions behind option 1 but fear that it would actually lead to a hollowing out of the CPD programme through unintended consequences.

Question 2: Do you foresee any impacts from option 2, positive or negative, that we have not already identified?

Option 2 seems to take away the benefits of option 1 was leaving in place all of the option 1 problems outlined above. This is the least attractive option.

Question 3: We would welcome your views on whether or not the SRA should continue to suggest a minimum number of hours CPD for all solicitors.

Yes. Also, have a parallel CPD programme requirement for paralegals and other non-solicitor fee earners. This parallel scheme will only apply to those other fee earners not already subject to CPD obligations (e.g. members of the Institute of Paralegals and the CPD schemes of other professions).

Question 4: What do you see as the advantages and disadvantages of these alternative approaches to monitoring?

Please see above.

James O’Connell

Head of Policy

Institute of Paralegals