Disciplinaries – news or not?

An SRA consultation seeks the profession’s views on its current approach to publishing regulatory decisions, questioning whether the SRA’s current approach strikes the right balance between giving clients the information they need to make informed decisions about who they instruct, while also ensuring previous regulatory misconduct is not published for longer than is necessary, to protect and maintain confidence in the profession.

Presently

The SRA’s current position on publication, which has not changed since 2007, is as follows:

• Decisions by the Solicitors Disciplinary Tribunal to strike off solicitors from the Roll, or the making of an Order pursuant to Section 43 of the Solicitors Act 1974, preventing non-solicitors from having involvement in firms, are published indefinitely, subject to a successful application for redaction or removal of a decision or the revocation of the Section 43 Order;
• Decisions by the Tribunal to suspend solicitors are published for the length of the suspension (which can be indefinite) or 3 years, whichever is the greater;
• Decisions by the Tribunal or the SRA to fine and rebuke individuals and firms are published for 3 years from the date of the decision; and
• The SRA does not routinely publish details of ongoing investigations, unless they consider it to be in the public interest to do so (for example, where the matter is high profile and the fact that the SRA is investigating is already in the public domain).

Why change?

Given the SRA’s current focus on consumer choice and transparency, there is an argument suspensions and larger fines, which would suggest more serious misconduct, should be publicly available for longer than three years. However, this does need to be balanced against the right of firms and individuals to be able to continue practising without the continued reputational stigma arising from an incident which occurred several years ago, and where the Tribunal and/or the SRA has not deemed the firm or individual be a long-lasting threat to the profession.

In reality, due to the level of professional and public interest in disciplinary proceedings, case outcomes are often reported in the legal press, and occasionally even the mainstream media, meaning the case will remain in the public domain in some form potentially indefinitely. However, a press article may not capture the nuances of a case, or any aggravating or mitigating factors which led the SRA or the Tribunal to reach a particular outcome. Depending on the circumstances, this lack of detail or nuance could either work in favour of, or against, the solicitor or firm.

Ongoing matters

Similar considerations apply to the publication of ongoing investigations. A member of the public looking to instruct an individual or firm might reasonably expect to know if a firm is being investigated by their regulator, particularly if the instruction has some relevance to the matter under investigation. The SRA has publicly available guidance setting out the threshold that needs to be met before it will investigate concerns, meaning allegations which are entirely without merit will not reach the investigation stage. Nevertheless, there is an obvious reputational risk to individuals and firms if the public are informed of ongoing investigations, which is particularly acute in circumstances where the SRA itself states it closes most investigations without taking any further action.

Finally, the SRA has requested feedback on the level of detail it provides in its publication decisions. In this regard, consistency is very important, as the amount of detail contained in regulatory settlement agreements can vary significantly from case to case. For example, in November 2021, the SRA rebuked a solicitor for posting “several inappropriate messages on a WhatsApp group containing approximately 100 members” which were “offensive and derogatory about certain groups of individuals.” This was clearly an important case, given the ongoing debate about the extent to which the SRA should intervene in the private lives of solicitors – yet the relative lack of detail makes it hard to determine the precise circumstances in which the SRA’s jurisdiction will be engaged.

The SRA has recently confirmed it intends to move forward with the proposed increase of its internal fining powers from £2,000 - £25,000 – meaning even more cases are likely to be dealt with by way of regulatory settlement agreements. In those circumstances, it is vital SRA decisions contain enough detail to establish why they took action and how it has determined a particular sanction was appropriate.

The consultation closes on 2 August. It seems unlikely the profession would favour greater publicity of decisions and investigations – but it is possible the public would take a different view.

Andrew Pavlovic is regulatory law partner with CM Murray LLP: cm-murray.co.uk

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