The Education And Training of People Working Within The Regulatory System for Solicitors.
B386_190209.
THE EDUCATION AND TRAINING OF PEOPLE WORKING WITHIN THE REGULATORY
SYSTEM FOR SOLICITORS.
This is a complex issue, which requires some long term and radical treatment. The writer’s experience dates back to 1985, as a member of the Law Society’s then Complaints Interviewing Panel, and itincludes a fair amount of work for the former Solicitor’s Complaints Bureau and the various succeeding bodies, including the current Legal Complaints Service. Other similar work includes active membership of the Solicitors’ Defence Agency, (formerly the B.L.A. Defence Fund Ltd.) and from 1995 helping solicitors in difficulties as a member of the panel of the Law Society’s Assistance Scheme. In 1998 a senior official in the Society requested the preparation of a survey of the various advice and support services available to guide and help solicitors facing ethical and professional difficulties. The report was produced and submitted early in 1999 to the Law Society’s then Professional Practice Committee, who welcomed the same. One outcome was the long overdue reform of the Solicitors’ Assistance Scheme [originally established in 1972] to give that body for the first time a governing committee; previously it had been run by two salaried officials, who had found it invidious,and even embarrassing,to have to take decisions on issues of management and policy. Members of the Scheme met and devised a new system and constitution, which were endorsed by the majority of Panel members at a general meeting in November, 1999. At that point the writer stood down as Chairman.
Since then the Committee have worked hard, and ensured that solicitors across the country have had access to suitable advice and guidance on a wide range of problems, such as professional conduct, ethics, compliance with the accounts rules, money laundering, disciplinary matters, including hearings and interventions, discrimination and bullying, employment law and the like. As there is no real counterpart to Legal Aid or similar public funding to cover the costs of solicitors facing such difficulties, those solicitors who are members of the Scheme work voluntarily for an initial hour or so, often over the phone, listening to callers and giving advice. If a solicitor requires further help, he or she may decide to instruct a panel solicitor, or, indeed, any other practitioner, to represent him or her before the adjudicator or the Solicitor’s Disciplinary Tribunal. It has been at this stage of the official investigation of complaints and allegations that a number of difficult issues have arisen.
Currently the Solicitors’ Regulatory Authority employ well over 300 caseworkers, not all of whom are legally qualified, and they have been known to recruit widely, so a great burden and responsibility rests on the S.R.A. to ensure the quality, competence, skill and expertise of these employees. Thus much depends on how well and effectively such staff are trained - and, inevitably, how much they are remunerated. Experience indicates that the quality is uneven;; some are very good, but others are different. The workload is in effect investigative and in large measure quasi-judicial, but the salary scales scarcely reflect that level of responsibility. Moreover, as those who are not legally qualified are often recruited, the question arises,what kind of training do they receive within the regulatory body? To the best of the writer’s knowledge, information and belief, it is not enough. Some years back the writer obtaine a set of the official notes - c.20/30 sheets in all - then provided for the training of caseworkers. No distinction was made between those who were legally qualified and the others, and , although the material was reasonably sound, it was not detailed enough. Enquiries about the time spent by such staff in training yielded only vague answers. By way of contrast, the writer recalls asking a presenting officer from the former Social Security ministry about his period of training and was informed that it was one year before the person concerned could appear as an advocate before the Social Security Appeal Tribunal. Those advocates who did so appear were all well trained and either graduates or of an equivalent standard. Some of the, admittedly anecdotal, evidence about caseworkers is less complimentary.
Serious concerns have been raised a number of times about the quality of the performance of caseworkers and similar staff, such as investigative accountants; the record shows that in one hearing before the Solicitor’s Disciplinary Tribunal the Chairman, in dealing with a matter concerning some incorrectly kept accounts, went out of his way to declare that there was no evidence whatsoever of dishonesty. Until he stated that, the prosecution had been alleging dishonest conduct, and, some months before, the senior partner in the firm concerned had been so disturbed by the allegations made by a caseworker, that he had used a shotgun and killed himself. In another, more recent matter, an intervention, made avowedly on the grounds of urgency, to prevent the continuance of fraudulent accounting, eventually resulted in a hearing before the Solicitors Disciplinary Tribunal, at which the prosecutor frankly conceded that there was no evidence of dishonest accounting and admitted that the other matters alleged against the firm were comparatively minor breaches of the Accounts Rules. Unfortunately the caseworker had been adamant throughout the matter from the early investigations and throughout the trial in alleging dishonesty, and the end result had been that the practice had been needlessly destroyed, Later still an order had been made against the solicitor concerned, imposing a condition that the practitioner could work only under another solicitor, after disclosure of that restriction to every prospective employer: eventually, after nearly two years of vain efforts to seek employment, an appplication was made to the Master of the Rolls, who decided to lift the limitation. That solicitor is now back as a self-employed practitioner.
Anecdotal evidence is , admittedly, not enough to prove the need for change, but those instances are not isolated, for there are others which unhappily fall into certain familiar patterns. There is , for instance, a succession of ill-prepared Rule 4 statements coming before the S.D.T, which results in delays for adjournments or the dismissal of matters, coupled with the award of costs against the prosecution. The volume of work before the S.D.T. is reported to have increased greatly in the last few years, as also has the duration of hearings; three or four days are not uncommon, and the tribunal’s Clerk now has several assistants to help cope with the workload , instead of one as formerly.
One urgently needed remedy lies in raising the standard of education and training for regulatory work; ideally every case worker should have a qualification at the level of a universary postgraduate diploma in regulatory affairs. Assuredly no new recruit should be allowed to operate without such a
certificate of competence. To the argument, that there are few, if any, courses and qualifications answering that description, the reply is that they will need to be created with the minimum of delay. Inevitably there will have to be interim measures, such as exemptions for practising solicitors and counsel, and others who can provide other satisfactory evidence of competence, e.g., a certification as a duly qualified clerk in the magistrates’ courts. Another device would be to rquire current case workers not presently meeting those interim standards for exemption to obtain a suitable, prescribed qualification within, say, two or three years, in default of which they would cease to be eligible to continue in that grade of post. On the issue of the likely syllabus for the suggested new qualification, this should not prove very difficult, for there are a good number of people, well qualified to teach and train students to the required level. There is certainly scope for creating a rather higher grade, a master’s degree, and that prospect would help the SRA to be rid of the unfair and harsh reproach, that people who have limited skills and abilities can always find a refuge or a meal ticket in regulatory work.Inevitably the issue of determining a realistic and fair sytem of salaries will be raised, but there is no escape route for the paymasters such as the employment of cheap labour.
The logistics of setting up courses at a number of universities to teach and train students about regulatory matters should not be too burdensome, in the light of the expansion of higher education in recent years. This is because the likely intake will be mostly at the postgraduate level, and the new system would also give the opportunity to provide students with a broad and comparativesurvey of regulatory affairs and systems, rather than concentrating entirely on the concerns affecting the solicitors’ profession. Budgeting for these suggested reforms and improvements will not be cheap, but the benefits should be considerable, showing in a reduction in failed prosecutions before the S.D.T. and adverse costs awards, improved quality of work in the investigation of complaints, and reducing the number of protests against allegedly arbitrary and unjust treatment, such as unwarranted interventions, groundless allegations of dishonesty and the imposition of over stringent and even vindictive restrict-ions on the issue of limited practising certificates. One other welcome benefit would be the creation of another cadre of skilled practitioners, experienced in quasi-judicial and regulatory affairs, who could be considered for senior appointments both in the private and public secorts.
Currently the failure to develop along these lines the skills and standards outlined is leaving regulatory affairs governing solicitors in a backwater, where throughput and the attainement of arbitrary targets are treated as paramount, rather than quality and high standards. Significantlythe Crown Prosecution was undervalued for some years, until reality broke through and the qualified staff there became eligible for judicial appointments. Good regulatory workers desrve recognition for the skills they use and the responsibilities they fulfil. The additional training and qualifications proposed would help in achieving uniformly higher standards and performance and benefit both the entire profession and the community as a whole.
Michael B.Buck. 20 / 02 / 2009.
THE EDUCATION AND TRAINING OF PEOPLE WORKING WITHIN THE REGULATORY
SYSTEM FOR SOLICITORS.
This is a complex issue, which requires some long term and radical treatment. The writer’s experience dates back to 1985, as a member of the Law Society’s then Complaints Interviewing Panel, and itincludes a fair amount of work for the former Solicitor’s Complaints Bureau and the various succeeding bodies, including the current Legal Complaints Service. Other similar work includes active membership of the Solicitors’ Defence Agency, (formerly the B.L.A. Defence Fund Ltd.) and from 1995 helping solicitors in difficulties as a member of the panel of the Law Society’s Assistance Scheme. In 1998 a senior official in the Society requested the preparation of a survey of the various advice and support services available to guide and help solicitors facing ethical and professional difficulties. The report was produced and submitted early in 1999 to the Law Society’s then Professional Practice Committee, who welcomed the same. One outcome was the long overdue reform of the Solicitors’ Assistance Scheme [originally established in 1972] to give that body for the first time a governing committee; previously it had been run by two salaried officials, who had found it invidious,and even embarrassing,to have to take decisions on issues of management and policy. Members of the Scheme met and devised a new system and constitution, which were endorsed by the majority of Panel members at a general meeting in November, 1999. At that point the writer stood down as Chairman.
Since then the Committee have worked hard, and ensured that solicitors across the country have had access to suitable advice and guidance on a wide range of problems, such as professional conduct, ethics, compliance with the accounts rules, money laundering, disciplinary matters, including hearings and interventions, discrimination and bullying, employment law and the like. As there is no real counterpart to Legal Aid or similar public funding to cover the costs of solicitors facing such difficulties, those solicitors who are members of the Scheme work voluntarily for an initial hour or so, often over the phone, listening to callers and giving advice. If a solicitor requires further help, he or she may decide to instruct a panel solicitor, or, indeed, any other practitioner, to represent him or her before the adjudicator or the Solicitor’s Disciplinary Tribunal. It has been at this stage of the official investigation of complaints and allegations that a number of difficult issues have arisen.
Currently the Solicitors’ Regulatory Authority employ well over 300 caseworkers, not all of whom are legally qualified, and they have been known to recruit widely, so a great burden and responsibility rests on the S.R.A. to ensure the quality, competence, skill and expertise of these employees. Thus much depends on how well and effectively such staff are trained - and, inevitably, how much they are remunerated. Experience indicates that the quality is uneven;; some are very good, but others are different. The workload is in effect investigative and in large measure quasi-judicial, but the salary scales scarcely reflect that level of responsibility. Moreover, as those who are not legally qualified are often recruited, the question arises,what kind of training do they receive within the regulatory body? To the best of the writer’s knowledge, information and belief, it is not enough. Some years back the writer obtaine a set of the official notes - c.20/30 sheets in all - then provided for the training of caseworkers. No distinction was made between those who were legally qualified and the others, and , although the material was reasonably sound, it was not detailed enough. Enquiries about the time spent by such staff in training yielded only vague answers. By way of contrast, the writer recalls asking a presenting officer from the former Social Security ministry about his period of training and was informed that it was one year before the person concerned could appear as an advocate before the Social Security Appeal Tribunal. Those advocates who did so appear were all well trained and either graduates or of an equivalent standard. Some of the, admittedly anecdotal, evidence about caseworkers is less complimentary.
Serious concerns have been raised a number of times about the quality of the performance of caseworkers and similar staff, such as investigative accountants; the record shows that in one hearing before the Solicitor’s Disciplinary Tribunal the Chairman, in dealing with a matter concerning some incorrectly kept accounts, went out of his way to declare that there was no evidence whatsoever of dishonesty. Until he stated that, the prosecution had been alleging dishonest conduct, and, some months before, the senior partner in the firm concerned had been so disturbed by the allegations made by a caseworker, that he had used a shotgun and killed himself. In another, more recent matter, an intervention, made avowedly on the grounds of urgency, to prevent the continuance of fraudulent accounting, eventually resulted in a hearing before the Solicitors Disciplinary Tribunal, at which the prosecutor frankly conceded that there was no evidence of dishonest accounting and admitted that the other matters alleged against the firm were comparatively minor breaches of the Accounts Rules. Unfortunately the caseworker had been adamant throughout the matter from the early investigations and throughout the trial in alleging dishonesty, and the end result had been that the practice had been needlessly destroyed, Later still an order had been made against the solicitor concerned, imposing a condition that the practitioner could work only under another solicitor, after disclosure of that restriction to every prospective employer: eventually, after nearly two years of vain efforts to seek employment, an appplication was made to the Master of the Rolls, who decided to lift the limitation. That solicitor is now back as a self-employed practitioner.
Anecdotal evidence is , admittedly, not enough to prove the need for change, but those instances are not isolated, for there are others which unhappily fall into certain familiar patterns. There is , for instance, a succession of ill-prepared Rule 4 statements coming before the S.D.T, which results in delays for adjournments or the dismissal of matters, coupled with the award of costs against the prosecution. The volume of work before the S.D.T. is reported to have increased greatly in the last few years, as also has the duration of hearings; three or four days are not uncommon, and the tribunal’s Clerk now has several assistants to help cope with the workload , instead of one as formerly.
One urgently needed remedy lies in raising the standard of education and training for regulatory work; ideally every case worker should have a qualification at the level of a universary postgraduate diploma in regulatory affairs. Assuredly no new recruit should be allowed to operate without such a
certificate of competence. To the argument, that there are few, if any, courses and qualifications answering that description, the reply is that they will need to be created with the minimum of delay. Inevitably there will have to be interim measures, such as exemptions for practising solicitors and counsel, and others who can provide other satisfactory evidence of competence, e.g., a certification as a duly qualified clerk in the magistrates’ courts. Another device would be to rquire current case workers not presently meeting those interim standards for exemption to obtain a suitable, prescribed qualification within, say, two or three years, in default of which they would cease to be eligible to continue in that grade of post. On the issue of the likely syllabus for the suggested new qualification, this should not prove very difficult, for there are a good number of people, well qualified to teach and train students to the required level. There is certainly scope for creating a rather higher grade, a master’s degree, and that prospect would help the SRA to be rid of the unfair and harsh reproach, that people who have limited skills and abilities can always find a refuge or a meal ticket in regulatory work.Inevitably the issue of determining a realistic and fair sytem of salaries will be raised, but there is no escape route for the paymasters such as the employment of cheap labour.
The logistics of setting up courses at a number of universities to teach and train students about regulatory matters should not be too burdensome, in the light of the expansion of higher education in recent years. This is because the likely intake will be mostly at the postgraduate level, and the new system would also give the opportunity to provide students with a broad and comparativesurvey of regulatory affairs and systems, rather than concentrating entirely on the concerns affecting the solicitors’ profession. Budgeting for these suggested reforms and improvements will not be cheap, but the benefits should be considerable, showing in a reduction in failed prosecutions before the S.D.T. and adverse costs awards, improved quality of work in the investigation of complaints, and reducing the number of protests against allegedly arbitrary and unjust treatment, such as unwarranted interventions, groundless allegations of dishonesty and the imposition of over stringent and even vindictive restrict-ions on the issue of limited practising certificates. One other welcome benefit would be the creation of another cadre of skilled practitioners, experienced in quasi-judicial and regulatory affairs, who could be considered for senior appointments both in the private and public secorts.
Currently the failure to develop along these lines the skills and standards outlined is leaving regulatory affairs governing solicitors in a backwater, where throughput and the attainement of arbitrary targets are treated as paramount, rather than quality and high standards. Significantlythe Crown Prosecution was undervalued for some years, until reality broke through and the qualified staff there became eligible for judicial appointments. Good regulatory workers desrve recognition for the skills they use and the responsibilities they fulfil. The additional training and qualifications proposed would help in achieving uniformly higher standards and performance and benefit both the entire profession and the community as a whole.
Michael B.Buck. 20 / 02 / 2009.
posted by Michael Buck at 9:53 AM
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