The competence of striving to be more than competent

Jane Ching, Nottingham Trent University

The Training Framework Review and, implicitly, the new solicitors’ Code of Conduct suggest that a competency of a qualified solicitor should include an ability positively to improve performance (as opposed just to avoid negligence). Based in part on work in progress on the development of recently qualified litigators, Jane’s paper at Vocational Teachers Forum V on 6 January 2006 discussed that competency as as aspect of professionalism and its implications for the vocational stage of solicitors’ education.

“Competence…is the ability to draw the same thing over and over in the same strokes, with the same force, the same rhythm, the same trueness. This kind of beauty, however, is Ordinary…The second level…is Magnificent…This one goes beyond skill…its beauty is unique…The third level is Divine…A person seeing this would be wordless to describe how this is done. Try as he might, the same painter could never again capture the feeling of this painting, only a shadow of the shadow.”

— (Tan, 2001:233)

In this paper I look at a particular competency made explicit in the Law Society of England and Wales’ Training Framework Review, but, I suggest, an aspect of proper professionalism in any event, and consider some of its implications for the way in which we approach the vocational stage of ‘training’ for intending solicitors. Some of the material is derived from my PhD project and, therefore, informed by interviews of newly qualified solicitors.

For the sake of clarity, I use ‘competency’ for the particular sub-skill and ‘competence’ in a more holistic sense, which, as we will see, admits of different meanings.

The competency

The competency in question is to be found under the outcome: “Demonstrate the professional, personal management and client relationship skills required of solicitors”. It was suggested that this should incorporate “the capacity to recognise personal and professional strengths and weaknesses, to identify the limits of personal knowledge and skill and to develop strategies that will enhance professional performance”. This I will describe as the competency of being able to strive to be more than (merely) competent or the competency of development. What is significant about this statement, although tinged with the profession’s natural pessimism, is that it suggests that a ‘competent’ solicitor might do more than simply avoid incompetence (professional negligence) and take positive steps to promote and enhance his or her competence.

“In any consideration of the value of what lawyers do, competence must come first. Competence is not the only thing of value in law practice, but without it nothing else matters very much. The legal profession and the courts both recognise the inherent value of competence – competence is an ethical duty and gross incompetence is considered professional misconduct. To clients, competence is the bottom line requirement they demand in their legal representatives.”

— (Nathanson, 1997:144)

The competency of development is susceptible of dissection into a number of assumptions:

1. A level of self knowledge (responsibility and motivation).
2. A self directed strategy for learning or personal development (which could encompass simply an ability to choose appropriate CPD activity or, something more akin to the critical reflection described by Mezirow and Schön, or the ‘double loop learning’ of Argyris).
3. Enhancement of professional practice. This is, I suggest, capable of encompassing models of development similar to Eraut’s (1994) three dimensional ‘model of progression’ by both increasing the efficiency of the individual’s existing task load but also expanding the number of tasks and their complexity, ie beyond the “tasks properly allocated to a newly qualified solicitor”. In the professional context, this latter movement necessarily involves a recognition that more complex professional activity is more ‘swampy’ in Schön’s analogy (1983, 1987) and less susceptible of ‘right answers’ than the kind of task that might be assigned to a novice.

It is entirely consistent with the intentions of the Training Framework Review and the expectations of the white paper on the future of legal services (Department for Constitutional Affairs, 2005) that this competency should be formalised as an explicit and significant part of the profession’s ethical structure. Unless it is assumed to be present in “core duties” 1.09 and 1.10 it does not, however, appear so explicitly in the profession’s Code of Conduct (Law Society 2005d), although lack of competence is given (at 2.01) as a proper reason for refusing to act. Although obligations are placed by the Code of Conduct (at 5.02) on supervisors in terms of responsibility and training, this is, again, framed from the ‘avoidance of negligence’ perspective rather than the active enhancement of competence. One might contrast the espoused position of other professions (for example General Medical Council, 1997) in a commitment to learning, teaching and research (in the context of workplace learning one might note the medical profession’s assumption of an obligation to engage in teaching on the part of all members).

“26. PRHOs [pre-registration house officers] must develop and be able to use a range of teaching and learning skills. They must recognise the importance of audit and appraisal in identifying their learning needs and those of their colleagues.
27. PRHOs must be able to do the following.

1. Take part in training medical and other students and colleagues.
2. Use different ways to record, organise and present information.
3. Understand and use different teaching methods to communicate information to colleagues, and choose the most appropriate for the goal of the teaching.
4. Reflect on practice, be self-critical and be able to explain how to carry out an audit of their own work and that of others.
5. Identify their own learning needs and what motivates them, taking account of the opinions of patients and medical and other colleagues.
6. Record learning needs in their portfolio, and contribute to their personal development plan as agreed with their educational supervisor and collect information needed for revalidation.
7. Be able to identify:
   • learning needs from their portfolio and personal development plan that they will continue to develop in the second year of the Foundation Programme
   • their preferred learning styles”

     — (General Medical Council, 1997)

In an environment of great change both in legal activity:

“The results of specialisation in the legal profession, competition and changes in legal aid have led to a form of industrialisation within the legal sector. Legal work is often organised in a more standardised and repetitive fashion. Work is de-skilled and broken up into different activities which can be handled by lower level operatives.”

— (Sherr, 2001)

and in regulation (see both Clementi, 2004a and 2004b, and the white paper on the future of legal services, Department for Constitutional Affairs, 2005) it is appropriate, I suggest, to seize on an opportunity to embed this competency both a) as an aspect of professional ethos allowing something rather more optimistic than merely the avoidance of complaint and allegations of professional negligence, and b) that being the case something to which the existing skills, interests and concerns of vocational teachers can make a positive contribution.

The effect of measuring competence when we do

The Training Framework Review proposes to measure competence at the point of qualification, adopting what might be described as a normative and political meaning of the word (‘competence’ as meaning ‘qualified’, see Eraut, 1994:164) or as a holistic ‘meta-outcome’ linking all the stages of pre-qualification legal education (Sherr, 1998:9). The Legal Practice Course (LPC; the vocational course for solicitors in England and Wales) introduces students to the concept of measuring competence at the point prior to entry into the workplace, with its written standards defining the range of activities in which the individual is to be competent and the level of expected ability in such activities, or, as Eraut (1994:167) puts it, “two dimensions, scope and quality”.

This is the point at which the variables become complex – the newly qualified solicitor is not (in most firms) expected to undertake the range of activities expected of experts, and this may be the basic cause of the difficulty of applying a two dimensional framework (competent/not yet competent in a discrete series of tasks without also examining inherent capability to take on more complex tasks in the near future) to a three (or more) dimensional field (Eraut, 1994:215).

Nevertheless, the fact of assessment itself, when combined with the lack of further assessment post-qualification discussed below, and the use of ‘competent/not yet competent’ as a scale in some LPC topics, suggests a pejorative, pessimistic sense of the word – ‘only just competent’, ‘not negligent’, limited in the sense suggested by the quotation at the head of this paper. From that perspective there would be no reason to consider aspiring to being anything more than competent – ‘mere’ competence becomes an end in itself. There is, I suggest, an alternative meaning of the word which admits of the aspiration embedded in the competency for development set out above (closer to the idea of competence as being midway on a spectrum between novice and expert – Dreyfus and Dreyfus, 1986:23 – rather than the end of one’s professional journey):

“A competent professional is no longer a novice or a beginner and can be trusted with a degree of responsibility in those areas within the range of his or her competence, but has not yet become proficient or expert. This contrasts with those definitions of competence adopted by most competency-based systems of training and education, which assume a binary scale by confining assessment decisions to judging whether a candidate is competent or not yet competent. … binary scales [are] inappropriate for assessing most areas of professional knowledge and … [are] incompatible with the notion of lifelong learning. “
(Eraut, 1994:215)

However, within the range of activities in which the newly qualified do engage, there may be some (some ‘form filling’, for example) in which there is an absolute standard – right or wrong – whilst in other tasks the quality of the novice’s work is expected to be less (less innovative, less effective) than that of the expert, whilst maintaining a ‘bottom line’ of competence in the sense of non-negligence.

There has for a long time been evidence of a commoditisation of legal work that will, by necessity, tend to affect the more junior members of the profession, potentially inhibiting the individual’s expectations of what they might aspire to and the opportunity to move on to more complex areas of practice. If employers wish to have their newly qualified solicitor move on to more complex tasks and to develop expertise and the flexibility to offer good legal service in a world where there will be increased competition, particularly in the more process driven (will writing, debt collection, conveyancing) aspects of the job, the newly qualified solicitor needs to have strategies that will allow them to develop that expertise and that flexibility (and the encouragement to do so).

A newly qualified solicitor might be thought to need to be able to:

• keep up to date (given the total immersion during the academic stage in the law, usually entirely divorced from its practical context and the nature of the law as a constantly changing body of information, the overwhelming focus on this issue in young solicitors, potentially to the detriment of their development in other spheres, is understandable)
• maintain and improve competence in the tasks currently undertaken – individuals speak compellingly of the point at which they are able to perform a task or transaction for a second time to consolidate and demonstrate their confidence in doing it (close to the definition of ‘competence’ at the head of this paper) and of wanting practical steps and tips to assist them in putting theory transmitted in CPD lectures into practice
• be able or prepared to move to other (potentially more complex) tasks, (and new activities such as networking and marketing) possibly independently of their employer’s aspirations for them.

All of which might fit more easily into the ‘post-competence’ idea of capability, with its emphasis on use of knowledge (see Webb in Webb & Maughan, 1996; O’Reilly et al, 1999) necessarily including a responsibility for one’s own development, of which some aspects have already been detected (Boon & Webb, 2002:27,33) in the LPC written standards.

“The usefulness of the capability construct for professional education lies in holding…[two meanings of the term ‘capability’] together in some kind of balance. In its first sense capability has a present orientation and refers to the capacity to perform the work of the profession – capability is both necessary for current performance and enables that performance. In its second sense, capability can be said to provide a basis for developing future competence, including the possession of the knowledge and skills deemed necessary for future professional work.”

— (Eraut, 1994:208)

Cheetham and Chivers (1996), indeed, take the position that “for the future, the only constant at professional level will be change, and…professionals will be continually obliged to ‘reinvent’ their professions” in advocating the capability construct to promote the reflection, innovation and creativity thought to be absent from a relatively static competence/competency model.

To return to the present position, however, competence might still be assumed by LPC graduates to mean 50% or ‘not incompetent’, despite the indications in the current written standards that nod towards this competency (“make the most of the experience which follows and gain the confidence necessary for competence in practice”; “learn from the experience of the course and from future practice”; ““transfer skills learnt in one context to another”; “demonstrate an awareness of the limits of their own competence and know when to ask for assistance”: Law Society, 2004a).

Given what I have said about the changing nature of legal practice, added to the expectations of the white paper on the future of legal services:

“…safeguards for consumers will ensure high standards of quality, propriety, and independence in the delivery of all services…”

— (Law Society, 2004a:39)

we cannot afford to allow students to assume that a bottom line 50% is good enough, either before or on qualification, or that (appealing as it may be to those who have taken six or more years to get there) qualification is a pinnacle rather than the first in a series of foothills.

The lack of a distinct continuum within the three stage pre-qualification process equips students with a number of skills and learning techniques without necessarily considering how those skills and techniques might transfer into the post-qualification period, and in particular, into the workplace. That said, as will be suggested at the end of this paper, there is nothing about the strategies that will assist a student to demonstrate the competency of development after qualification, particularly in the three areas already identified, that is not already inherent in the LPC.

Post-qualification: what they have to work with and within

Of course, the Training Framework Review only sought to set ‘day one outcomes’, measuring competence at the point of qualification (a separate group is understood to be examining CPD: Webb & Fancourt, 2004:297), and the student does not (FILEX excepted) qualify straight from the LPC. The employer cannot, therefore, be separated from its obligations to assist in the development and exercise of the competency for development.

A problem may be the lack of a clear structure beyond qualification within which the individual can measure their development. Competence beyond the point of qualification is measured by specialism (panels), by completion of postgraduate degrees or other specialist examinations (for example insolvency practice, rights of audience), by frameworks internal to individual firms or by accession to partnership. There are no broad measures of competence across the board post-qualification except for one’s reputation, and, as already indicated, no continuum in the pre-qualification stages. In the absence of an employer’s framework of competencies the individual solicitor is, therefore, rather left to their own devices about what they might need to learn or how they might go about it.

“But, after completion [of the qualification stage]…there are another 40 years or so of working life awaiting the new lawyer…So we can contrast the framework which supports the first 20 years or so [of life] with that supporting the remaining 40 years. The framework or base on which we structure CPD is, by comparison, fractured and intellectually immature.”

— (Roper, 1997:172)

The competency of development found in the day one outcomes is the key, enabling the new lawyer not only to strive to avoid incompetence but also to aspire beyond the day one outcomes, maintaining overall competence against the constantly moving target of their own increasing post-qualification experience and the increasing demands of their employer. All this within a new workplace and CPD context that has the advantage of being real and not simulated (unlike the LPC), but without, in many cases, all the framework of organisation and careful feedback that has surrounded him or her during the vocational stage and, one hopes, to some extent during the training contract.

What they will have to work with

It is suggested that the existing CPD system alone, as in effect a ‘compliance’ or ‘sanctions’ model (Madden & Mitchell, 1993), does not of itself foster or demonstrate this competency of taking full responsibility for one’s own professional development, the words “will enhance” practice suggesting that the responsibility extends beyond the simple ‘input’ of attending CPD activity to taking steps actually to improve practice – to strive to be more than ‘competent’ – as a result of the CPD activity. Nor does the CPD system say anything about learning from or in the workplace where learning is not the principal focus of the activity (‘task conscious’ as opposed to ‘learning conscious’: Rogers, 2003).

But ask a solicitor about their priorities and CPD activity and the response will almost inevitably be about keeping up to date. The vast majority of our CPD provision still involves lectures on ‘current developments in’ various aspects of law or procedure. As a profession we are continually running as fast as we can in order to stay where we are. Remaining static means only, however, that we (perhaps – because the fact that I have been to a lecture on a topic does not of itself mean that I will recall what I have been told under stress, 18 months later, in a marginally different context) avoid negligence on grounds of obsolescence. It does not, of itself, make us better lawyers or equip us to move beyond where we are.

Some workplaces will, of course, have careful and dedicated training departments and processes of review and appraisal designed to support the individual and to exploit their competencies for development. The training contract is intended at least to be a supported transition between the classroom and the workplace (but is a watershed for some people: Fancourt, 2004), but the newly qualified speak of a further point of crisis on qualification when they are expected to take on additional activities (networking, marketing) and additional responsibilities (for the management and costs of the whole case rather than part). Learning now becomes a by-product of the activity engaged in rather than its focus.

The quality of supervision, mentoring and feedback will depend very much on the ethos of the firm and the personality of the supervisor. The employer becomes an additional stakeholder in the individual’s development, with all that that implies in terms of choice of learning activity, training budget and aspirations for the individual’s progress within the firm that may not be shared by the individual. It is at this stage that the possession of the competency for development becomes crucial, as without it not only will the individual fail to progress or be sufficiently flexible to change with the winds of the legal profession but they also run the risk, in that changing context, of also failing to avoid incompetence.

What can the vocational teacher do?

The idea that the profession might positively recognise an obligation on the individual to strive to be more than (merely) competent, or ‘not incompetent’, has a number of implications for those involved in vocational and professional education, including those within employer organisations responsible for supporting the training contract and the early years of practice:

• continuing to encourage independent learning in reflection, research, seeking, giving and sharing feedback, discussing and managing transfer of learning between topic areas
• strategies for learning in the workplace in clinics and simulations and mentoring, simply talking to students about how they might transfer their skills of learning in a very supported environment to the workplace (that we know something about but that they do not); for employers, managing the transitional period of qualification
• inculcating the idea that learning goes on past the point of qualification and that the competency of development is an integral part of one’s professionalism
• fostering a culture in which mere competence is not enough
  and requires the profession seriously to define itself as a learning (and teaching) profession, with all that implies in terms of time and money. The challenge, particularly at the vocational stage, will be to get past the students’ natural and strategic assumption that they only need to pass (that bottom line of 50%), and that qualification is the summit of all their aspirations.

References and bibliography

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Biography of Jane Ching

Jane is a solicitor, a Registered Practitioner of the Higher Education Academy and Reader in Course Design and Curriculum Development (Civil Litigation) at Nottingham Law School. She is currently working on a research project into the perceptions held by 0-3 year qualified litigation solicitors about their post-qualification development.

Last Modified: 4 June 2010