Continuing professional development on its way

March 1st, 2012
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By Nomfundo Manyathi

The Law Society of South Africa (LSSA) will soon be introducing continuing professional development (CPD) for attorneys. CPD is the ongoing process of knowledge and skills transfer, and includes activities such as attending conferences, mentoring aspiring attorneys, electronic learning, as well as publishing articles in journals such as De Rebus.

The LSSA’s chief executive officer and director of its Legal Education and Development (LEAD) arm, Nic Swart, has told De Rebus that CPD’s aims include ensuring a high standard of legal services to the public, strengthening the image of the profession and reducing the risk of professional liability.

Mr Swart said that CPD will be done on a voluntary basis until the Legal Practice Bill becomes law, when it will ‘hopefully’ become mandatory. He added that it may take a few years before CPD is implemented on a compulsory basis, adding that interim voluntary CPD will help the LSSA gain experience in running CPD and keeping record of attorneys’ activities.

Mr Swart said that before mandatory CPD is implemented, the LSSA needed to create a database containing the details of every attorney in the country, as well as a reporting system.

The LSSA is in the process of implementing the voluntary system with the hope of starting it later this year. Mr Swart said there were already firms that had shown a keen interest in voluntary CPD.

How CPD will work

There will be categories of learning activities that attorneys must participate in. Credits will be allocated according to the effort in terms of time and energy put into a particular activity, the complexity of the activity and its value in terms of practice development. Maximum and minimum credit allocations will apply for each activity in order to promote a selection from various methods of learning.

There will be exemptions for certain categories of attorneys, such as those who have practised for 25 years or longer. Attorneys who have been ill for a long time, those who have been absent from South Africa for work reasons, as well as those who have been continuously involved in a practice matter that makes compliance impossible may also be granted relief in the form of suspension or extension of the requirements of CPD.

Mr Swart said that when CPD is made mandatory attorneys will have an obligation to complete a certain number of credits in a three-year cycle. The credits will work on a sliding scale in the sense that the more senior the attorney, the less his obligation will be. For example, senior participants will be required to do 12 hours in a year instead of the 24 hours that will be required of newly admitted attorneys.

Attorneys will need to obtain the following credits over a three-year cycle –

  • 72 credits if they have been practising for less than six years;
  • 54 credits if they have been practising for six to 12 years; and
  • 36 credits if they have been practising for more than 12 years.

Attorneys must obtain a minimum of three credits in every year of the cycle.

Impact on attorneys

Mr Swart said that CPD will not have too great an effect on attorneys as there were many attorneys already complying with the requirements of CPD. He said that these attorneys had developed a culture of learning and would not have a problem fitting in with the new system.

He added that the only real impact that he foresees is in the degree of obligation. ‘What we want to make sure of is that CPD is as inexpensive as possible, that it is accessible, and that there are no complicated reporting systems,’ he said. Mr Swart said that attorneys had to plan for their development.

Mr Swart said that the LSSA was trying to minimise the impact of CPD by creating as many learning options as possible so that attorneys would be able to comply with CPD from the comfort of their offices.

Accreditation

A CPD authority will be established that will act as an accredi

tation body. It will, among other functions, deal with accreditation applications from various providers, receive and record annual compliance reports and identify, at random, attorneys for interim audits.

The accredited providers could be members of the profession, private providers, universities, as well as attorneys themselves, who could apply for their firms to be accredited as providers of CPD and could, for example, provide training in rural areas.

The accreditation will apply to the provider as a whole and not to individual programmes offered by the provider. The provider will allocate credits in accordance with the criteria set by the authority.

Mr Swart explained that attorneys will be able to benefit and score points through legal publications such as De Rebus by submitting articles, as well as from reading articles published in the journals. He said: ‘For example, De Rebus will be asked to have some form of evaluation or assessment at the end of an article. Attorneys will, after reading that particular article, be asked to answer a few questions about it and submit the answers to De Rebus online. De Rebus will then issue certificates as verification that the activity was completed.’

Reaction to CPD

When asked about how attorneys have reacted to the planned implementation of CPD, Mr Swart said that there were some who supported it and were passionate about training, which he said was encouraging. However, there were those who were opposed to it. ‘I honestly believe this is because they think it will be costly and time consuming and I think it should be made very clear that that is not what the intention is. It must be as least costly as possible,’ he said.

Voluntary CPD will be self-monitored and attorneys will keep their own attendance records. They will, once a year, provide a brief online report on their completed activities, which will lead to certification. Once mandatory CPD is implemented however, there will be a stricter approach with regard to monitoring and compliance.

Mr Swart said that CPD was ‘very positive’ for the profession and that it was necessary for the profession to remain credible, adding that he believed that every profession should have it. At the moment, other professions that have mandatory CPD in South Africa are the health, engineering and accounting fields.

According to the website of the Health Professions Council of South Africa (HPCSA), CPD for health care practitioners started on 1 January 2007 when practitioners were given the responsibility to continually update their professional knowledge and skills.

The health profession’s CPD was introduced in the Health Professions Act 56 of 1974, which states that compliance with certain conditions of CPD is a prerequisite for continued registration at the HPCSA.

It is very similar to that which the LSSA is considering implementing as each practitioner is required to accumulate a certain number of continuing education units per 12-month period and the HPCSA has random audits where they select a practitioner who must submit a CPD portfolio within 21 days. The HPCSA may suspend health care professionals who do not comply with CPD.

CPD for engineering practitioners started on 1 January 2006. It is used as a mechanism for all registered practitioners to renew their registration with the Engineering Council of South Africa. CPD was incorporated in the Engineering Profession Act 46 of 2000, which states as a requirement that registered practitioners have to renew their registration and ‘apply, in the prescribed manner, to the council for the renewal of his or her registration’. All engineers must accumulate a minimum of 25 credits during a five-year cycle, with a minimum of five credits per year.

CPD for the accounting profession also began on 1 January 2006.

Amanda Mmari, a candidate attorney at Johannesburg law firm Ramushu Mashile Twala Inc, told De Rebus that she thought that CPD was a very good idea as ‘one can never be a master of law’. She added that the legal profession required continuing research and development.

‘Because the law is deemed as “liquid” in the sense that it is always changing and adapting with society, in order to be an excellent lawyer one has to keep oneself abreast of the law and CPD will assist with that,’ she said.

However, Ms Mmari said that she did not agree with the fact that it should be mandatory for all (without the exceptions) as she believed that attorneys should not be forced to enrol for such a programme as it would disrupt many firms and would also disrupt ‘business as usual’, adding that it should be mandatory for candidate attorneys to be involved in CPD up until admission because this would assist them to develop a culture of legal development and prepare them to continue this once they are admitted attorneys.

Ms Mmari said she believed that in order for CPD to work, it would have to be introduced gradually in order to monitor the response to it and its effectiveness, as well as to see whether it will in fact create a difference in the South African legal system as a whole.

‘My biggest concerns would have to be that many attorneys will not like the idea of having to “go back to school” and have to attend mandatory conferences or lectures, and may boycott the whole process. However, if it is introduced as a voluntary programme the outcome may differ. Attorneys are very competitive and one will always want to have the upper hand over the next and so mandatory CPD is bound to be a success,’ she concluded.

Sizwe Snail of Pretoria firm Snail Attorneys told De Rebus that he thought CPD was a great idea for attorneys.

He said that it was important as it ensured that attorneys were kept up to date with new legal developments and that they never stop being learners of the discipline.

Mr Snail said that it would work if the seminars did not take up too much time, adding that the seminar option could add an assessment element such as assignments or examinations.

Mr Snail said that one of his biggest concerns about CPD was that not enough input was being sought from the profession and that the importance of CPD was not being properly conveyed to practitioners.

Darryl Hurwitz of Johannesburg law firm Hurwitz Higgs Attorneys also thought that CPD was a good idea. He said that the legal industry required that practitioners constantly learn and gain experience, and it was wonderful that the LSSA took a keen interest in this.

Mr Hurwitz added that: ‘The main challenge facing the LSSA is to create programmes that add value to all types of law firms regardless of their size or the types of legal services they offer, while being flexible enough to suit busy practitioners who often do not have the time to attend learning programmes or to attend to onerous in-house administration.’

Nicky Sher, training and skills development manager at law firm Eversheds, said that CPD was ‘a positive innovation’ that brought the attorneys’ profession in line with other professions already participating in CPD.

She said that she believed it was a good idea as the purpose was to create opportunities for learning skills necessary for legal practice.

Ms Sher added that as long as attorneys had access to relevant and affordable CPD programmes, and that compliance was properly monitored, she thought it would work. She added that her concern was whether the learning activities would be diverse and relevant, and whether they would add value to the practice of attorneys.

Cliffe Dekker Hofmeyr’s director of knowledge management, Monique du Preez, said that CPD contributed to the general skills level of the profession as a whole and ultimately also benefited clients. She added that CPD should not detract from the attorney’s first and foremost duty to render professional services of the highest quality to his client.

Ms du Preez said that CPD activities should be flexible enough to accommodate the diverse needs of attorneys in the different types of practices and that consideration should be given to voluntary compliance.

‘Most importantly, attorneys should be consulted and their buy-in obtained when it comes to a compulsory CPD scheme. The scheme should be seen as a useful tool enabling attorneys to formalise a training and development plan, to make a contribution to a system of lifelong learning for attorneys and to improve the competence and standards of the profession as a whole rather than simply being another box to check for regulatory purposes,’ she said.

Other countries that have CPD for attorneys include England, Wales, Scotland and Australia.

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2012 (March) DR 30.