Blogging (and maybe tweeting) should be part of Continuing Professional Development

3 June 2011 by Adam Wagner

Updated x 2 | Yesterday’s article by Alex Aldridge on Guardian.co.uk – Why barristers balk at the ‘box-ticking’ of continuing professional development – has sparked a furious (well, furious-ish) debate in the comments section and Twitter over whether legal blogging and tweeting should be included in barristers’ compulsory Continuing Professional Development (CPD) hours. 

My view is that legal blogging, and possibly even legal tweeting, should be included in CPD, and currently the former almost certainly is. But this is set to change if the Bar Standards Board’s (BSB) new proposals are accepted, cutting blogging out of CPD completely. This is a bad idea, for reasons I will explain.

But first, a general introduction to CPD. The Bar Standards Board’s (BSB) CPD information pack explains it as follows:

CPD is work undertaken over and above the normal commitments of barristers with a view to such work developing their skills, knowledge and professional standards in areas relevant to their present or proposed area of practice, and in order to keep themselves up to date and maintain the highest standards of professional practice.

All barristers are required to complete 12 CPD hours per year. If they fail to do so, they are likely to be disciplined by the BSB. The offence is strict liability (that is, there are no excuses) and if convicted a barrister usually gets a fine.

The system is fairly flexible, at least once you have completed your first three years of practixe. After that, 8 of the 12 required hours can be “unaccredited”. This includes presenting lectures, teaching on university courses, advocacy training, mock trials and mooting. And

Legal writing or editing can count for a maximum of 4 unaccredited CPD hours per calendar year.

Writing or editing the following “can” count for these hours: law books, law articles, practice notes for publication, consultation papers, examination question papers, law update papers, legal dissertations and legal reports.

Two points. First, the word “can” (as opposed to if the sentence began “Only”) implies a non-exhuastive list. Therefore, it is perfectly reasonable that other forms of writing could be included so long as they fit in with the general principles of CPD, namely that it develops a barrister’s “skills, knowledge and professional standards” in an area relevant to their practice.

Secondly, in my view “law articles” would cover many blog posts. There is little if any difference in content or even form between many legal blog articles and those published in legal journals. Clearly, not all blog posts could be included. For example, to take two of my own posts, I would argue that this post, which is a case comment on a judicial review application about phone hacking, should count, but this post, a more personal plea for sponsorship in the London Legal Walk, should not.

As CharonQC put it yesterday on Twitter:

Serious law blogging (done by a few barristers) merits credit for CPD – and is remarkably good service to public

I agree with Charon. Legal blogging, defined as serious commentary on the law published online, often involves significant research for the lawyer writing the blog. And,  it also serves an educational purpose by presenting the law in an understandable way to the public.

Tweeting is less straightforward. Most of the time Tweeting is like having a conversation in the pub with other lawyers. Of interest and possibly of professional developmental use, but hardly the kind of activity envisaged by the CPD system. That said, a case might be made for detailed “live” tweeting of a new case report being included in CPD.

Meanwhile, on High Holborn…

This may all be about to change. The BSB has just undertaken a major review of CPD, and has published a proposed draft handbook, which as well as recommending an increase in CPD hours from 12 to 24 annually, includes the following as “not allowable”:

Unofficial networking activities such as running a personal website, blog, legal commentary or online diary.

In my view, there are a number of problems with this. Fist, what is an “unofficial” networking activity? This expression may lead to the absurd result that serious legal blogging on the UK Human Rights Blog or UK Supreme Court Blog would be included in CPD, as these are “official” chambers blogs, but serious legal blogging on Pink Tape, a fantastic family law resource run by barrister Lucy Reed, would not.

Secondly, it is understandable why personal networking activities would be excluded. It is possible to imagine a barrister who runs a personal blog with little educational content in the form envisaged by the CPD system (such as, with no disrespect intended, the Baby Barista blog) arguing that it increases his professional profile so should count for CPD. But why is “legal commentary” lumped in there too? Legal commentary on a blog is usually pretty much identical to an article in a legal journal. An alien from Mars would not be able to tell the difference. This amounts to a format bias which is not in my view objectively justifiable, particularly in a profession which would like to consider itself forward-thinking.

Thirdly, the proposed handbook explains the point of CPD in the following terms: “increase knowledge, keep up to date, maintain professional competence, improve existing skills, develop new skills (professional or interpersonal)… become more marketable“. From my experience of blogging for just over a year, these are all effects of legal blogging.

Fourthly, there is clearly a public educational aspect to CPD; hence the inclusion of mooting, advocacy training and lecturing. I have argued recently that explaining the law to the public should be an ethical duty for all lawyers, and I see no reason why the CPD system should discourage such activity, particularly online where (as opposed to an obscure and expensive legal journal) public participation is high.

And finally, the BSB propose including “private study” into CPD hours. This includes reading “law reports, statutes, legal journals or similar materials”. This leads to the bizarre result that a barrister can claim CPD for reading a legal blog post, but not for writing one.

So, in my view the offending provision should be amended as follows:

Unofficial networking activities such as running a personal website, blog, legal commentary or online diary.

And the following should be added under “Publishing a book or article” (that is, in the “allowable” section)

Legal blogging which is akin to a legal article, for example a case comment or practice area update.

The advantage of this wide definition is that it captures the essence of what people consider to be acceptable, that is “legal”, writing without being too prescriptive.

The BSB working group have explained by email their rationale for the exclusion of blogging. They say:

This type of activity was excluded by the Review Group because quality can vary and there are no quality controls or referee processes etc for blogs, personal diaries and websites etc. If a book, article etc is published (including on line) there are some control processes.

I agree that quality can vary. But I disagree that there are no quality controls or referee processes for blogs: for example, the UK Human Rights Blog sometimes accepts guest posts. It only does so if they are of sufficient quality, and they are also edited (as are all posts) for quality. And another quality check is the fact that blog posts are “published” too. Most lawyers would be very reluctant to publish an article which would them them up in public, so there is a large element of self-regulation too.

This final point goes to the heart of the issue; so much of CPD, and in particular the proposed new regime where all of a barrister’s CPD hours can be unverifiable, rests on trust that the practitioner is honestly reporting their activities. We all know what is and what is not educational reading, and the CPD system makes us the judges of that. This trust should be allowed to bloggers too. If a blog is mere puff, any self-respecting barrister should exclude it from CPD, and can be disciplined for not doing so in any case.

The draft handbook will shortly be open to consultation and anyone who thinks blogging should be included in CPD should respond. BSB are also admirably responsive on through their Twitter account, so can be reached there too. Legal blogging provides a public service by explaining the law in a simple and accessible way. It is also an engaging way for a barrister to keep up to date with their current or future practice area. This should be encouraged, not discouraged, by the Bar’s professional regulator.

Update, 14 June 2011 – You can now respond to the consultation by email – click here.

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