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Consistent approach needed for suitability test

Lack of clarity over how the SRA applies its test criteria is ‘part of the problem’, says former Law Society president

28 October 2016

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The Solicitors Regulation Authority should take a more consistent approach to the suitability test, lawyers have urged, echoing calls by the Solicitors Disciplinary Tribunal last week for more rigorous testing.

In its response to the SRA’s ‘Looking to the Future’ consultation, the tribunal said that while it saw cases every year where individuals and entities have fallen short of the suitability test, it couldn’t comment with any certainty on whether these individuals were ‘suitable’ at the point of admission.

However, the tribunal went on, it had ‘a strong suspicion that the regulator’s enquiries at that critical point were insufficiently rigorous or that clear warning signs were not heeded by those with decision-making powers’.

At present, candidates seeking admission are required to make a number of disclosures intended to establish their character and suitability. Under the code of conduct, private conduct may also be taken into account if it is likely to have an impact on practice or bring the profession into disrepute. But spotting unsuitable candidates remains a challenge.

‘The overwhelming majority of the profession are fit and proper, so the starting point should be that everybody is suitable, but that doesn’t mean you shouldn’t check consistently,’ said Martina Hogg, the lead compliance consultant within the Compli team at Weightmans.

Hogg said the SRA was intent on ‘rolling back the frontier of regulation, in part because this will reduce costs’. She continues: ‘But how much does it cost to check everybody for suitability compared with the cost of sorting out the consequences of a collapsed firm? Another Wolstenholmes case could just wipe out the savings made.’

Gone, however, are the days when prospective solicitors had to appear in front of a vetting committee on Carey Street, and individual assessments have been replaced with online filing. Should we turn the clocks back?

‘Judgement concerning suitability at the point of admission or authorisation can be difficult,’ said Michael Stacey, an associate at Russell-Cooke. ‘A proportionate test is necessary and this has to be based on specific criteria to ensure consistency. An in-depth and tailored assessment of each individual applicant would be disproportionate and unworkable, and may produce inconsistent results; a mechanical element is unavoidable.’

For Linda Lee, litigator specialising in solicitors’ disciplinary work at Radcliffes LeBrasseur, ‘part of the problem with the suitability test is that its application has moved from when a student starts on a course to the point at which the training contract commences. The other is the lack of clarity over how the SRA applies its criteria; why one person who has committed a particular offence is allowed to qualify, but not another’. She adds; ‘The SDT appears to take a much more traditional view, that pretty much any conviction should be a bar to qualification.’

In addition to greater consistency, there is an obvious practical reason for greater clarity in how the regulator applies the test: students would know before they engage on an expensive course of study whether they will be allowed to qualify. ‘Although there is provision for students to seek an early appraisal of their prospects of being allowed to qualify, this is little known or understood,’ says the former Law Society president.

Where the boundary lies between conduct in the course of practice and private conduct has also caused confusion. In its consultation response, the SDT gave the example of a solicitor consuming alcohol with staff in the office, but with no clients present, as a situation which didn’t clearly fall on one side of the line. This lack of clarity, it said, was ‘potentially unfair’ and left outcomes ‘to the exercise of the SRA’s discretion which could easily lead to inconsistencies’.

The current guiding principles involve determining the impact of the conduct on the solicitor’s practice and whether it is sufficiently serious to warrant regulatory action. This is quite broad, but further detailing or codification may not necessarily be helpful. According to Stacey, the range of potential ‘private’ conduct which could have an impact on practice is ‘so broad that it is just not feasible to codify what could be regarded as purely “private conduct”.’ Adding: ‘Generally, the question will be whether the solicitor displays integrity in both their professional and personal conduct.’

The SDT has a front row seat when it comes to assessing the suitability of a solicitor to practise. Its raison d’être makes it a unique authority on the subject. And although the tribunal is not infallible its response to the consultation are striking a chord with stakeholders.

Jean-Yves Gilg is editor in chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg

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