Preparing for changes to the SRA Handbook: what you can do to develop professional judgement in tomorrow’s solicitors.
The Solicitors Regulation Authority (SRA) has been consulting on changes to the Code of Conduct and the Handbook for the past couple of years (see Looking to the future – flexibility and public protection
). Those close to the SRA are making educated guesses that it may publish further information and an implementation timetable this spring.
The SRA proposes one code for individual solicitors, and a separate code for regulated entities. Some have argued that, in recent years, the emphasis on organisations has shifted the balance away from the personal obligations and responsibilities of individual solicitors. The changes will emphasise the responsibility of solicitors to maintain professional standards, whether they work in-house, in private practice or elsewhere, such as not-for-profit organisations.
Greater emphasis on professional judgement
The SRA’s view is that neither solicitors nor firms need pages of detailed, prescriptive rules, and so it aims to reduce the size of the Handbook considerably.
The SRA’s view is that neither solicitors nor firms need pages of detailed, prescriptive rules, and so it aims to reduce the size of the Handbook considerably. Instead, it says it will focus on principles and high, consistent professional standards. As the SRA states: ‘The proposals put greater trust in professional judgement’ (Our response to consultation: looking to the future – flexibility and public protection, June 2017, page 3, para 6).
Professional judgement can only be developed through practice and must sit within what is acceptable and established. As a result, it has to be learned through the interpretation and application of legal knowledge in the specific context of each client, under the close supervision of a more experienced practitioner. Ensuring its lawyers can apply professional judgement enables an organisation to manage the risks associated with individual solicitor's decision-making. Traditionally, trainee solicitors shared their principal’s office and shadowed their principal closely; now that practices operate differently, in open-plan offices and with a greater emphasis on digital working, how can practitioners ensure that trainees develop professional judgement?
Happily, Fiona Westwood, a management and training consultant specialising in working with professional service firms, has considered this in her latest book, Exercising professional judgement – mastering the craft of lawyering
(Matador, 2016).1Legal Action readers can buy the book with a 40 per cent discount (£15 rather than £25) online at: www.troubador.co.uk, using discount code FW200.
Based on an extensive research project, Westwood identified a combination of key components required to develop professional judgement:
•technical knowledge and its application in current and established practice;
•a learned ability that includes the relevant skills (for example, risk assessment and problem-solving);
•an identification and understanding of context;
•the personal confidence to determine and implement the actual decision; and
•a framework of learning from experience, in a ‘community of practice’ that encourages reflection.
Nine steps to developing judgement
Westwood shows how organisations can adopt a consistent approach in terms of decision-making and behaviours, to foster sound judgement in their future solicitors:
Provide an effective induction: You may train recruits to follow internal processes, but it will also help them develop their understanding if you explain why.
Incorporate judgement into initial assessments: Asking trainees to undertake legal research in a specific client situation and within a tight timescale requires judgement calls that they won’t have had to make at university.
Encourage them to look at the ‘how’ as well as the ‘what’: Make sure they are given a range of client files and documents from a number of colleagues, so they can appreciate the styles of writing used, and how these differ depending on the context.
Provide feedback: No one understands how they are doing unless you tell them!
Set tasks to help them develop judgement: For example, reviewing a client file and identifying the potential options available, as well as areas where further research or information is needed.
Increase responsibility: From six to 24 months. To build personal confidence and skills.
Develop reflective skills: This will not only help them to recognise when they may have made a mistake, but also enable them to learn from that mistake. For example, you may ask your trainees to explain, analyse and critique decisions they have made and reflect on what they have learned from making them.
Develop the ability to manage context: For example, by drafting court submissions for both sides to an action.
Be open and reflective yourself: Talk about examples of the exercise of your own judgement – when it went well, when it didn’t and why.