4 August 2022

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Regulator’s model for ensuring Costs Lawyers’ ongoing competence set to change

CLSB required to meet expectations in Legal Services Board’s new policy statement within next 18 months

Dr Helen Phillips

The way that Costs Lawyers ensure and prove their ongoing competence is likely to change in light of a new statutory statement of policy issued by the Legal Services Board (LSB).

The CLSB’s proposed business plan for 2023 commits the regulator to developing a programme of work to align its approach to ensuring continued competency with the policy statement.

The policy sets clear outcomes that all of the legal services regulators should meet to ensure that lawyers have the necessary skills, knowledge and behaviours to provide good-quality legal services.

The culmination of a three-year project that has included public consultation and a call for evidence, independent research and cross-sector engagement, the policy requires regulators to set standards of competence, get a better understanding of their regulated communities’ competence, and set new measures to ensure standards are maintained.

In determining levels of competence, the policy statement says regulators should consider, among other things, information from supervisory activities “such as spot checks, audits, file reviews or equivalent oversight checks”, as well as feedback from consumers/users, intermediaries, supervisors, peers and judges.

Possible measures to ensure competence include competence assessments – such as observation or examinations – and reaccreditation models (i.e. requiring periodic proof of competence to maintain a practising certificate).

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.

“LSB consumer research conducted during the project shows a gap between what the public expects regarding lawyers’ competence and the current checks in place: 95% of people believe lawyers should have to demonstrate they remain competent throughout their careers.”

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

LSB chair Dr Helen Phillips added: “The public must be able to have confidence that lawyers have the right skills, knowledge and behaviours to protect our interests, enforce our rights and keep us safe. 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 said each regulator would need to develop an evidence-based approach to implementing the policy that was 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.”