Competence is a vitally important topic in the legal services professions, particularly for those working in a regulated environment. This blog will focus on the BSB and SRA, but the remaining legal service regulators will also have equivalent requirements given that these are derived from the overarching regulator, the Legal Services Board (“LSB”).
Not only is it a regulatory requirement for every barrister and solicitor who holds a practising certificate to verify each year that they have maintained standards of competence, but there is a significant piece of work being undertaken by the LSB at present entitled “Ongoing Competence”. This project is gaining support and momentum from the regulators as well as the Legal Services Consumer Panel. The objective is for the regulators to introduce measures to assess ongoing competence for ALL regulated legal professionals so that consumers of legal services can be assured that regulated lawyers remain competent throughout their careers. The upshot of this project means that the professions are highly likely to face significant changes to the way that competence is assured going forward; the scope and form has been set out in an LSB consultation with responses from the profession being submitted in early March 2022; there is no doubt that these measures will go far beyond the current annual verification.
Legal Competence Requirements
In March 2015, the SRA published its Statement of Solicitor Competence which it requires all solicitors to meet, both on admission to the roll, and also on an ongoing basis. There are 18 different broad competencies which are intended to be read holistically as the SRA considers that some of the individual competences pervade all areas of work and underpin the statement.
Similarly, the BSB introduced the Bar Qualification Rules which came into force in April 2019 including the Professional Statement for Barristers (published in September 2016) which forms the foundation around which the BSB Authorisation Framework is built. The Professional Statement is formed of four overarching categories containing 37 distinct competencies; it is these competencies which a student/future barrister will be trained to meet.
Students and Those at the Start of their Careers
If you are a student or someone who has not yet achieved practising status, one of the major requirements in order to achieve practising status is that you will need to develop and demonstrate the competences in the respective competence statements.
Our experience is that the full extent of these statements has not yet trickled down into the educational environment and/or some of the individuals still seeking to achieve practising status completed the educational and vocational components prior to the introduction of the respective statements.
In our view, it is imperative that far more focus is given to these competence requirements by education and vocational providers so that individuals have a good awareness of the standards against which they are going to be measured. This will allow them to firstly enter the practising stage of their chosen profession and also understand the competencies they must maintain throughout their practising careers.
There is also a call for a greater focus on reflective practice with the LSB including a specific provision in their draft statutory statement of policy[1] that in adopting approaches that ensure standards of competence, regulators should consider, amongst other factors “The promotion of reflective practice and use of feedback, including in pre-authorisation education and training, to identify learning and development needs.”
For an introduction to Reflective Practice, see our blog How to Master Reflective Practice.
What is competence?
- Oxford dictionary: the ability to do something successfully or efficiently.
- Wikipedia: the set of demonstrable characteristics and skills that enable and improve the efficiency or performance of a job.
Apparently, the concept of competence was first developed for performance motivation by R.W.White in 1959. Perhaps they hadn’t consulted individuals and asked what words would motivate them to better performance!
Put bluntly, competence is not a sexy word or something which inspires reverence. I don’t know about you but there is something slightly stark and cold about being described as competent and we seem to prefer more emotive words such as brilliant, accomplished, talented et cetera.
The key here is to understand that competence is, as the BSB explain it, the “Threshold Standard” or the bare minimum which needs to be attained and maintained.
The SRA take a broad definition of competence as being “the ability to perform the roles and tasks required by one’s job to the expected standard” (Eraut & du Boulay, 2001).
So there it is, according to the regulators, competence is the bare minimum needed to undertake your work.
Naturally, drive and ambition will then lead individuals to strive beyond this to achieve more subjective descriptions such as “successful” or “awesome”.
How do we measure it?
Wherever you look, the answer always points to some form of assessment. What is less clear, until you start delving into the detail, is that all of the different competency systems or models require criteria against which measurements are made.
This is where the professions of solicitors and barristers, by virtue of being in a regulated environment, do actually give us some certainty for a change with the introduction of the relevant competence statements referred to above.
These statements essentially are the starting point to measurement as they set out the standards which need to be achieved.
The challenge, however, is how to measure these objectively and consistently, particularly when, for the time being, the regulators don’t give us the answer to this. This may be something which is discussed and decided as part of the “Ongoing Competence” project and for my part, I think it’s hugely important that we have a say in how we are going to be objectively measured in the future.
The Competence Ladder
A good starting point especially for those looking at this for the first time from a self-assessment perspective is to consider the Competence Ladder[2] (also known as the competence model or competence matrix).
- Unconscious incompetence:
- This is essentially not knowing how to do something and not recognising the lack of knowledge.
- This may, in part, be due to a lack of understanding or recognition of the need for the skill.
- The key to moving forward from this stage is two-fold – recognition of the skill and the desire to learn.
- Conscious incompetence
- Here the lack of skill is recognised, and its value is usually recognised.
- Confidence plays a big factor into development of this skill or knowledge.
- Positive learning often involves making, accepting and moving on from errors; a safe environment to do so is vital here.
- Conscious competence
- Knowledge and understanding of the skill is present.
- It’s likely that effort and attention to detail is still required.
- Ways to improve and develop the skill is likely still being undertaken and are effective.
- Unconscious competence
- The skill has been practised so much that it has become “second nature”.
- The skill can be performed easily and while carrying out other tasks.
- There can be several dangers of being on this rung of the ladder though:
- The skill has become so “natural” that it becomes difficult to teach it to others.
- Complacency sets in and there is a failure to take note of changes which impact upon the skill.
- The individual is no longer in “learner mode” and cannot always easily develop other skills.
Sticking for the moment with the ladder metaphor, a few other important points to consider:
- When we look at learning of any kind, it’s obvious that we can’t learn everything all at the same time to the extent needed. Therefore, we need to recognise and plan how we are going to move up-and-down the ladder in relation to different skills, needed at different times. Naturally, there are benefits to this as we may pick up other skills or information as we are moving up and down “the learning ladder”.
- Added to this is that just like with a real ladder, there is a danger of trying to carry too much up the ladder in one go. Don’t overload your learning and development; this can result in some skills not receiving the attention they need or in a worst-case scenario “burnout”.
- It’s important to recognise that the ladder is simply a tool to be added to your “learning toolkit”.
- Personal Development guru, and author of the 7 Habits of Highly Effective People, Stephen R Covey famously said: “If the ladder is not leaning against the right wall, every step we take just gets us to the wrong place faster.” Applying this to competence, means that ahead of any learning and development we should ensure that the skill or knowledge will help us to achieve our goal or objective.
Practical Tools
As mentioned, competence needs to be measured against a particular model or criteria or have a purpose.
If, as an individual, you are new to assessing your own competence, we have developed a few basic tools for you to choose from to get you started which can be downloaded for free at the bottom of this blog.
Summary
With competence being such an important topic in the future of legal services regulation, we will no doubt return to this again in our blog. For the time being though, I would like to leave you with a final thought on competence; there is some evidence from a pioneering 1982 study[3], which was replicated in 2018[4], that perceptions of competence can be just as important for success as actual competence. This is likely as a result of the failure of organisations to assess competence objectively and consistently against set criteria as well as the influence of confirmation bias.
The key therefore appears to be demonstrating confidence in your own competence – often known as “fake it till you make it”. A word of warning though as according to the above-mentioned studies, this positive effect is wiped out when individuals claim incompetence in others to their own benefit. Also, claiming competence in skills which do not exist will soon become apparent, particularly in this age of social media and readily available information and data.
We hope that you have enjoyed reading this blog and that the tools for your toolkit help you in developing your competence. If you would like to discuss exploring or developing your own or your team’s competence and compliance further, please feel free to contact us on [email protected] or on 0121 288 5227.
Michaela Hardwick, Director/Solicitor
Please complete this form if you would like to receive one or more of our Competence Assessment Tools, tick the boxes below to let us know which you would like – the BSB, SRA or a blank template for your own criteria:
[1] https://legalservicesboard.org.uk/news/legal-services-board-sets-clear-outcomes-for-regulators-on-lawyers-ongoing-competence-status-quo-is-not-best-to-protect-the-public-interest
[2] Competence model credited to Gordon Training International/Noel Burch.
[3] Barry R. Schelnker and Mark R. Leary, ‘Audiences’ reactions to self-enhancing, self-denigrating, and accurate self-presentations’ (1982) 18 JESP 1 Accessed <https://www.sciencedirect.com/science/article/abs/pii/002210318290083X> Accessed 3 August 2021
[4] Erin M. O’Mara, Benjamin R. Kunz, Angela Receveur & Sierra Corbin, ‘Is self-promotion evaluated more positively if it is accurate? Reexamining the role of accuracy and modesty on the perception of self-promotion’ (2019) 18 Self & Identity 4 <https://www.tandfonline.com/doi/abs/10.1080/15298868.2018.1465846> Accessed 3 August 2021
