A lesson in learning

With the coming into force of the Solicitors’ Code of Conduct and its crackdown on training, firms need to smarten up their acts or risk falling foul of the law. By Jane Jarman

In-trays and inboxes across the nation’s law firms will no doubt be weighed down with training leaflets offering a panacea for the new Solicitors’ Code of Conduct, which came into force on 1 July 2007.

Since the inception of the new code, the need for training and compliance is likely to be at the forefront of the minds of many managing partners as they return from their summer holidays. The need to ensure that at least one partner is “qualified to supervise” the practice under Rule 5 of the new regime has received significant attention in the legal press.

However, the new code has wider training implications than for simply one partner. The need for the training of all staff, appropriate to the roles they undertake and responsibilities they have, is also at the centre of the new code.

Without proper definition of training needs, law firms may spend their budgets on courses that do not fulfil the objectives of either the firm or the individual concerned, leading to dissatisfaction and wasted expenditure. However, if a few simple rules are followed, it should be possible to obtain a better training ‘fit’ for the firm, while at the same time generating evidence of the firm’s commitment to training and compliance with Rule 5.

Rule 5: competence and training
Rule 5 is one of the most significant rules in the Solicitors’ Code of Conduct. All principals in a firm will be required to:
• make arrangements for the effective management of the firm as a whole; and
• ensure adequate supervision and compliance with anti-money laundering legislation, regulatory requirements and control of undertakings and client care.

Rule 5.01 (1)(i) states that principals must ensure the adequacy of the training of individuals working in the firm to maintain a level of competence appropriate to their work and level of responsibility.

This is a key point, albeit an obvious one. Many law firms will do this almost without thinking. However, this is an evidence-based code – it is not sufficient to merely say that you do something; it is necessary to prove it with evidence.

The guidance notes to the code define competence as “the ability to perform a task or rolled required standard by the application of essential knowledge, skill and understanding”.

The method of delivery is left to the firm. No specific requirements are set down and the guidance notes indicate training can be “of any kind relevant to the work or responsibilities of the individual, and can be delivered by any appropriate method”.

The method of delivery could include mentoring schemes, in-house training, or individual study. The guidance note goes on to state that such training “need not be accredited under the compulsory continuing professional development [CDP] scheme or involve attendance at courses”.

Training and skills audit
Defining the precise training needs of the individual often receives scant attention. Although the presentation of a business case is often required before a place on a training course is booked, it is often left to chance whether the course is the right fit for that particular individual.

Try to complete a training and skills audit. Ask what type of work the individual does, what are their strengths and weaknesses and is there a particular work type to which they aspire, but have yet to acquire the relevant skills or background knowledge for? A training questionnaire could be used as a diagnostic tool to refine the training requirements of an individual or team.

This approach has a dual effect. First, the firm is less likely to spend money on inappropriate training courses. Second, the regulator can be provided with evidence, should it be required, to show that the firm has sought to respond to specific training requirements of staff, as required by Rule 5.

Selecting training courses
After you have completed your training and skills audit, try to scope out the training needs for a particular department or business sector for an entire year. Consider whether it is more cost-effective to buy in specialist expertise, either from barristers’ chambers, universities or training organisations, or use in-house resources.

Is it possible to run a generic course internally or collaborate with training organisation to come up with a more bespoke course for a department? Is it possible to form a consortium with a group of local firms to deal with a specific training need?This may be an approach that will become more attractive as the need to ensure that training is relevant and appropriate increases. Just because a course is offered by a training provider does not automatically mean that it is appropriate for a particular firm. Try to ensure there is a balance between skills training and black letter law.

Often lawyers simply want an update and fail to appreciate that their staff may need training, which can be best provided by mentoring schemes or training in issues such as project management and risk and resource management. Such subjects often appear to be the province of partners and support staff, but they could also be of use to fee-earners across the board.

The questionnaire and debrief
Ensure that at the end of every training course delegates are debriefed either informally or by means of a questionnaire, to ascertain their response to the training. Ask very simple and straightforward questions. What was effective and what was less so? What changes would you make should the training take place again?

More than just CPD points
Keep records not just of CPD points, but also of the relevant paperwork, detailing how the course was selected for the individual or team, the response to the diagnostic questionnaire and the results of the debrief.

It is also necessary that the material is reviewed periodically to ensure that the partners are appraised about the effectiveness of the formal training of individuals, such as mentoring and coaching.

Factors such as the size and complexity of the firm and the number and experience of the staff will be taken into account when considering the appropriateness of any training arrangements, but they must be reviewed. It is inevitable that the regulator will want to consider such evidence.

What now?
Training has often had something of a Cinderella status in law firms. While the need for specific money laundering training in 2003, as well as the increasing risk focus of market driven professional indemnity insurers, brought it added status, the new training imperative at the heart of Rule 5 may presage even more change. It is important not to simply grab the first training course that looks like it may be ‘okay’.

The first phase of training should be provided for those who will define the training needs and look for appropriate courses. This may be an HR function, but equally it may need to be performed by those skilled in education provision as well. Without such specialisation, not only will money and time be wasted upon inappropriate courses, but a law firm could find itself in breach of the new code.

Jane Jarman is a senior law lecturer at Nottingham Law School