Sent to the dungeon

Few members of the legal profession would ever contemplate ignoring a letter, email or phone call from one of our regulators. Those who do ignore a letter from the SRA or LeO are the most likely to fail to respond to correspondence from clients. Such people are a menace to their clients, themselves, their firms and the profession. Quite rightly, to protect the brand of 'solicitor', the SRA will be using its powers of enforcement and seeking to impose sanctions to weed out the wicked and the weak. Now LeO is following suit.

Where solicitors' firms and sole practitioners go to the wall the rest of the profession has to foot the bill. Charles Plant, the chairman of the SRA, has metaphorically told financially weak firms either get to the gym or get out of town. Financial stability and probity are high on the list of SRA pressure points.

Outcomes-focused regulation is a radical change from a tick-box approach. Some entrants to regulatory compliance (many of whom are not lawyers) still do not get this. For them, not putting 'authorised and regulated by the SRA' on a letterhead is to plumb the depths. Facing outcomes and tackling risks proportionately are new concepts for both regulator and regulated alike. The requirements of the SRA code must be constantly front of mind to ensure professional integrity. The last thing the profession needs is some sort of priestly caste overseeing regulatory compliance and thereby detaching it from the daily personal experience of practitioners.

Not all solicitors' compliance is dealt with by the SRA. Complaints about legal services provided to consumers, small businesses and charities, etc, are subject to oversight by LeO. Adam Sampson, chief ombudsman at LeO, has marshalled his forces against a serial legal non-communicator.

Bullying or balancing?

In Legal Ombudsman v Howard Robert Gillespie Young [2011] EWHC 2923 (Admin) (see also news, page 3) action was brought against a solicitor with a poor track record of cooperation with the SRA for also failing to cooperate with LeO. Is this a case of LeO bullying the weak, making an example of the wicked or taking a balanced and risk-based approach to the likely consequences of a failure to reply to correspondence?

Mr Young was the subject of a number of allegations of breach of the rules of conduct. He was subject to disciplinary proceedings before the SDT in 2009 and 2010 for failing to comply with the Solicitors' Code of Conduct 2007 and was fined. He then failed to deal with correspondence with LeO concerning a complaint about service.

LeO then issued a notice under section 147 of the Legal Services Act 2007. When Mr Young failed to respond to the notice, LeO invoked the powers of prosecution pursuant to section 149. Philip Havers QC for LeO submitted that failing to comply with a notice is analogous with civil contempt. Counsel said there were four factors that would justify gaoling Young: 1) a solicitor is an officer of the court; 2) failure to comply with the notice is in the context of repeated failures to respond to enquiries from LeO and the SRA; 3) refusal to comply with the notice caused severe prejudice to his former clients; and 4) his failure to comply with the notice followed two fines by the SDT.

Section 149(4) of the 2007 Act provides that if defaulter has no 'reasonable excuse' for failing to comply with a notice the court may deal with him as if he is in contempt.

In other words, a penalty for not responding to LeO where it has formally requested information and documents is imprisonment.

A fine line

In this case, Lindblom J was clearly anxious to tread a careful line between 'dealing' with Young as a serial defaulter and making clear that the court could impose sanctions of imprisonment of up to two years and a fine. The judge remarked that 'this being the first case of its kind, Mr Young has not had the fate of others in his position as a deterrent'.

The court found: 'Mr Young's default was the more serious in the light of his unfortunate disciplinary history, in which a pattern of ignoring correspondence and requests for information is plain.' Taking this comment into account, the fine of £5,000 actually imposed on Young does not suggest that the courts will be quick to impose custodial sanctions on lawyers who fail to deal with LeO's requests.

From the perspective of maintaining the reputation and brand of the English legal profession, the faster we are rid of people who default the better. If this involves casting one or two in the dungeons for a short while, 'pour encourager les autres', so be it.