Bringing the profession into disrepute
Solicitors are often punished for ‘bringing the profession into disrepute’ as a result of an occurrence in their private lives. In this article, Bernard George argues that this is wrong in principle, in practice and in law
It is wrong in principle because the Solicitors Regulation Authority (SRA) is a regulator, not a public relations agency. The reputation of the profession is a proper concern for the Law Society, but not the SRA. It is wrong in practice because the SRA has limited resources. Every hour spent investigating solicitors’ private lives is not spent rooting out fraud, incompetence and threats to justice. And it is wrong in law because the Legal Services Act 2007 sets out the SRA’s regulatory objectives and the reputation of the profession is not one of them.
A few examples
When a solicitor hit his mother with a saucepan during a family row he was banned from practising. When another had a consensual albeit drunken one-night stand with a subordinate he was initially ordered to pay almost a quarter of a million pounds. Drink driving will lead to the SRA fining you thousands of pounds, on top of the court’s punishment. And solicitors who post on social media are punished if the SRA feels they have said something ‘offensive, derogatory or inappropriate’.
Obviously, such cases may sometimes reveal that a solicitor has an alcohol or mental health problem, lacks integrity or is otherwise a danger. But that is different to fretting about the reputation of the profession.
Justifications
The SRA (and indeed disciplinary tribunals) commonly quote Lord Bingham MR in Bolton v The Law Society (1994), when he said that “the most fundamental purpose of all” of disciplinary sanctions was “to maintain the reputation of the solicitors’ profession”. That sounds like decisive authority for the SRA’s approach. It isn’t, for two reasons.
First, if you read Lord Bingham’s comments in context, his concern was that the profession should deserve a reputation for honesty, so that the public should have “a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness” (emphasis added). He did not see the reputation of the profession as an end in itself.
The killer point
But in any case, these days the SRA’s goals are set by the Legal Services Act 2007. Its seven ‘regulatory objectives’ are sensible things like improving access to justice and promoting the interests of consumers. Only one is remotely relevant for the present purposes. That is ‘encouraging an independent, strong, diverse and effective legal profession’. Parliament could have added a duty to promote the reputation of the profession, but it didn’t.
Nonetheless, the SRA insists that solicitors have a duty to uphold ‘public trust and confidence in the solicitors’ profession’. It claims that ‘confidence and trust’ in the profession is ‘critical for the users of legal services’. This bald and unconvincing assertion seems a feeble justification for regulating solicitors' private lives.
Please don’t cancel me
Let me be clear, I dislike wickedness as much as anyone. Sexual harassment is such a hot topic that I am nervous to say anything on the subject. But we already have laws, and courts to enforce them. Perhaps we need to add an agency to investigate and punish those guilty of ‘inappropriate’ conduct. But surely such an agency should have jurisdiction over everyone, not just lawyers?
The same point applies to hate speech. A solicitor who posted some lawful but politically incorrect tweets was suspended for 18 months and ordered to pay £11,000 even though they had nothing to do with her practice. Perhaps we need an agency to crackdown on this too, but meanwhile why should solicitors have less freedom of speech than others?
Incidentally, another solicitor who posted flippant comments about his clients’ affairs, including revealing confidential information, was merely fined £1,500.
Anyhow, where do you stop? I have written a book that criticises the legal profession, which may diminish public confidence. Should I be prosecuted?
An ethical crisis
As Professor Richard Moorhead recently pointed out in his Hamlyn Lectures, the Post Office scandal has shown lawyers guilty of widespread “incompetence, cynicism and reckless unprofessionalism”. Everyone is shocked. Yet, as any litigator knows, the behaviour of those lawyers was not unusual. What did the SRA do to prevent it?
And what about competence? The SRA is supposed to promote ‘the interests of consumers’, including ensuring that solicitors ‘maintain proper standards of work’. But it seems bored with that. Complaints about incompetence are almost invariably shuffled off to the Legal Ombudsman, and solicitors are free to practise in areas in which they are entirely untrained.
Why these priorities?
Some see the hand of social justice warriors at work. Personally, I think the problem may be structural. The SRA remains part of the Law Society. It is natural for SRA staff to share the concerns of the organisation and profession that ultimately employs them. This is plausibly a case of regulatory capture, which is when a regulator charged with protecting the public interest focuses instead on the welfare of the industry it is supposed to be regulating.
Bernard George is the author of OBJECTION! What You Need to Know Before You Become a Lawyer.