Continuing professional development obligations: plus ca change…

Today is the end of the CPD year, and the last day of operation of the Victorian Bar’s Continuing Professional Development Rules 2008 in Victoria.  They are hard to find now, but you can access them here.  The Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 were made on 26 May 2015 and commenced on 1 July 2015.  You can access them here. But the relevant Committee of the Victorian Bar recently determined that compliance with the old rules would be deemed to amount to compliance with the new ones for the current CPD year.  The page on the Bar’s website with recent CPDs’ videos and other resources may be accessed (by barristers only) here. The most significant (possible) difference between the new and old rules for barristers other than new barristers seemed to be in relation to what amounts to a CPD activity. Under the new rules, a CPD activity must be:

(a) of significant intellectual or practical content and must deal primarily with matters related to the practice of law;

(b) conducted by persons who are qualified by practical or academic experience in the subject covered; and

(c) relevant to a practitioner’s immediate or long term needs in relation to the practitioner’s professional development as a barrister and practice of the law.

That is broadly similar to the old rules’ definition, but what got left out of the new rules is a list of things which were expressly included in the concept, including giving CLE presentations, writing learned papers, editing authorised reports, and teaching at university.  Although by virtue of the drafting of the old rules, those activities must have satisfied the requirements of (a) – (c), so that it was arguable that there was in fact no change to the definition, the new rules were being talked about as if you could only get a point for consuming another’s presentation.  Happily, the controversy has been resolved in favour of the status quo by the Bar’s CPD Committee adopting a policy (the Victorian Bar Continuing Professional Development Policy 2016) which has been approved by the Victorian Legal Services Board, but does not yet seem to have hit the Bar’s website.  Essentially, the old points for activities conducted by or engaged in (as opposed to consumed by) the person claiming the points remain the same, with a bit of tightening up.

The requirements to have at least one point in four different areas, and ten points in total in each year ending 31 March remain  similar.  The four areas are (i) Ethics and professional responsibility, (ii) Professional skills, (iii) Substantive law, and (iv) Practice management and business skills.  These are not defined, and I am unaware of any guidance on their interpretation. Now, though, you can count up to 7 points for the last of those areas, whereas previously you could only claim one.

It is important to note this rule:

‘If the [Legal Services Board + Commissioner] or the person or organisation who conducts a CPD activity has assigned a particular CPD activity to one or more of the categories identified, a barrister who participates in that CPD activity may not assign CPD points in respect of that activity to any other category.  In any other case, a barrister may assign CPD points to any category that the barrister reasonably considers to be appropriate.’

There is an obligation to maintain a written record of CPD activities in the form provided by the Bar (whether the one at this page on the Bar’s website is referred to is unclear but there is a form of written record which is attached to the Professional Development Policy 2016), which is required to be kept for 3 years.  And there are time limits for seeking exemptions which suggest that if you realise you have not complied with the rules for a reasonably reasonable reason, it would be wise to apply for exemption with 21 days of realising. If you have not complied with the rules for a not a not particularly reasonable reason, you might have to submit to the Legal Services Board + Commissioner a rectification plan within 21 days of the end of the year.

Finally, you can always seek a resolution of the Victorian Bar’s CPD sub-committee, even retrospectively, that a particular activity is an approved CPD activity, even if it does not fall within the kinds of activities specifically spelt out in the policy.


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