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A Competence Statement for Solicitors - Our thoughts PART II

Dec 23 2014

This is the second part of our blog on the SRA Consultation about the proposed Competence Statement for Solicitors.  You can find the draft Competence Statement here.

Here's our initial reaction to the SRA's seven 'Consultation Questions'.


 1. Does the Competence Statement reflect what you would expect a competent solicitor to be able to do?

We think it's a well-thought-out and well-drafted statement.  But....

 

2. Are there any additional competences which should be included?

Yes.

The Statement should include some  specific financial topics/competences.

An understanding of personal and business finances is crucial for many practising solicitors when advising their clients.  Business clients frequently identify 'lack of commercial awareness' as a major stumbling block in the provision of high quality legal advice.

It's not clear whether trainees would still be examined on financial and business skills - including FSMA, POCA and MLR.   These are areas where a solicitor who's unfamiliar with the rules can easily stray outside their core competence - and potentially commit a criminal offence.

And solicitors need to know how to run their own businesses. 

The absence of some clear financial competences is a stark omission.

 

3. Have we struck the right balance in the Statement of Knowledge between the broad qualification consumers tell us they understand by the title 'solicitor' and the degree of focus which comes in time with practice in a particular area?

It's difficult to answer this question because the Statement of Knowledge simply contains lists of legal topics.  It leaves several questions unanswered.

For example:

  • - How much 'broad knowledge' will solicitors be expected to maintain?
  • - Should all solicitors ensure that their 'broad knowledge' of taxation, contract and constructive trusts is up to date?
  • - Will the same standards apply to a commercial property lawyers and to a criminal lawyer?
  • - How does the statement tell solicitors what will be expected of them?

 

To be fair, some of these questions are considered in paragraphs 19 - 21 of the consultation document.  But the Statement of Legal Knowledge could be improved by including some of the guidance in these paragraphs in the Statement itself.  This would help individual lawyers and their firms, who might otherwise struggle to identify what 'broad knowledge' topics they need to consider when assessing training needs.

 

4. Do you think the Threshold Statement articulates the standard at which you would expect a newly qualified solicitor to work?

No.

The draft threshold statement seems out of kilter with the rest of the consultation document.  The six areas covered* do not mirror the core activity areas set out in the Competence Statement.  We think they should.

The Threshold Statement might also create confusion.  For example, one can argue that the description for Level 5 Autonomy is actually the standard expected from all solicitors by the Handbook and the law.

Finally, some of the language used in the draft is too subjective to be useful.

If one purpose of the Threshold Statement is to assist with assessing competence at admission, then Trainee Solicitors might find it helpful.  The draft could be adapted and made more specific as part of a requirement for trainees to demonstrate a level of competence reflecting the nature of their training contract.

 

5. Do you think that the Statement of Legal Knowledge reflects in broad terms the legal knowledge that all solicitors should be required to demonstrate they have prior to qualification?

Broadly yes, but some key practice areas are missing from the Statement.  If it is supposed to reflect in any way what consumers believe, then there should be some place for topics like employment law, family law, privacy law, and so on.

 

6. Do you think the Competence Statement will be a useful tool to help entities and individuals comply with Principle 5 in the Handbook and ensure their continuing competence?

Remember Principle 5? - 'you must provide a proper standard of service to your clients.'

Our answer to this question is yes.... and no.

Yes - it is undoubtedly a useful tool that will help with compliance with Principle 5.

No - because it does not do enough to ensure continuing competence.

The language in the Statement is permissive - 'Solicitors should be able to...' - and it will  be unfamiliar to many experienced practising solicitors.  Some will have little real experience of taking responsibility for their own learning and development.   Some will never have heard of reflective learning.

What can be done? - Well, the proposed change to the Handbook in paragraph 37 of the Consultation makes sense. This will make it clear that compliance with the Competence Statement is one requirement of providing a proper standard of service.

But some changes to the Code of Conduct's Outcomes and Indicative Behaviours would reinforce the message.  These might include some focus on process as well as competence.

 

7. Are you aware of any impacts, either positive or negative, which might flow from using the Competence Statement as a tool to assist entities and individuals with complying with Principle 5 in the Handbook and ensuring competence?

This question refers to the SRA's own Equality Impact Assessment.  We don't see any adverse impacts on equality.

 

 

*(i) functioning knowledge, (ii) standard of work, (iii) autonomy, (iv) complexity, (v) perception of context, (vi) innovation & originality