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Regulators expected to introduce new measures to ensure ongoing competence of lawyers after Legal Services Board publishes new statement of policy

Legal regulators will be required to set standards of competence, get a better understanding of lawyers’ competence, and set new measures to ensure standards are maintained, the Legal Services Board (LSB) has said after this week publishing a new statutory statement of policy on ongoing competence.

The LSB said its statement “sets clear outcomes that the legal services regulators should meet to ensure that lawyers have the necessary skills, knowledge and behaviours to provide good quality legal services”. 

It added that the statement of policy was designed to be “risk-based, outcomes-focused and flexible for the regulators to implement across their regulated communities”. 

The LSB said: “Before now, there were very few routine or formal measures to ensure lawyers kept their knowledge up-to-date while practising. This is out of step with public expectations and with approaches taken in other professions.”

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The ‘super-regulator’ said consumer research showed a gap between what the public expects regarding lawyers’ competence and the current checks in place. This found that: 

  • 95% of people believe lawyers should have to demonstrate they remain competent throughout their careers. 
  • When informed about current arrangements, almost nine in ten people (87%) think legal services regulators should do more to reduce the risk of a lack of competence undermining public trust in the legal system. 

The LSB said it expects regulators to have fully implemented measures by January 2024 and has asked for progress updates by January 2023. 

LSB Chair Dr Helen Phillips said: “The changes introduced today will mean regulators provide greater assurance that their regulated professionals remain competent throughout their careers, not just when they enter the profession.  

“Our work in this area concluded that no one can currently say, with any degree of confidence, how often competence issues arise among regulated lawyers. Addressing this gap will not just promote the interests of the public and consumers, it should also be in the interests of the profession and the fair and effective administration of justice.”

Dr Phillips added: “Each regulator will need to develop an evidence-based approach to implementing our policy that is suitable for their regulated community. We will monitor the regulators’ progress and continue to work with the sector to provide consumers with fairer outcomes, stronger confidence and better services.”

A Solicitors Regulation Authority (SRA) spokesperson said: “We welcome the LSB’s work in this area and will continue to build on our current approach to make sure everyone can have confidence in the profession throughout their career.

“For background and not direct quoting, we’ve had our competence statement in place for more than seven years, we constantly review the standards we expect of solicitors in various areas of work through surveys and other research, and in the last 12 months we’ve prosecuted six solicitors at the SDT for incompetence.”

Law Society of England and Wales vice president Lubna Shuja said: “We welcome the publication of this statement, which will ensure regulators across the legal services sector are effective in protecting consumers and the public interest.

“This will assist the profession to demonstrate to the public how it maintains and promotes high competence standards, so we welcome the LSB’s focus in this area.

“The LSB has reiterated the need for regulators to follow an evidence-based approach, which we support. It has made it clear that any new measures must be proportionate and targeted only at cases where action is needed.”

She added that the Law Society would continue to liaise with the LSB and the SRA on the implementation of the policy and would support members in adapting to any changes made.

The Bar Standards Board, the regulator for barristers, has been approached for comment.

Mark Fenhalls QC, Chair of the Bar Council, suggested the move was “a solution in search of a problem”.

He said: “Throughout the consultation process we have consistently demonstrated that there is no evidence to suggest there is a systemic problem with barristers’ ongoing competence. In fact, the evidence, for example from the Bar Mutual Indemnity Fund, suggests standards are generally high at the Bar.

“Once again, we are concerned that this statement is an example of the LSB overstepping its remit as an oversight regulator when it ought to be concentrating on the performance of first-tier regulators in delivering their core activities.

“However, we note that the LSB statement of policy is intended to be flexible for regulators to apply, which is a step in the right direction. With no evidence of a problem at the Bar, it is essential that the BSB takes an evidence-based and proportionate approach to applying the policy in the future.”

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