The SRA must consider the impact of naming and shaming

All solicitors should be able to agree that clear and comprehensible charges are an essential part of a fair hearing. Any person facing proceedings, whether civil or criminal, should be able to understand the case they are expected to answer.

It is somewhat disappointing, therefore, that recent High Court and Solicitors Disciplinary Tribunal (SDT) cases have, once again, expressed criticism of the way that allegations have been put before the SDT. It is quite rare that such pleading concerns lead to the case in question being thrown out in its entirety.

In SRA v Heer Manak, the proceedings were struck out by the SDT as an abuse of process, since a point had been reached where it was no longer possible to hold a fair trial. The SDT commented it was not possible to identify a coherent and manageable case against the various respondents.

Even more recently, in SRA v Chan & Others, an appeal by the SRA against a sanction it considered unduly lenient, the High Court described the allegations as 'for the most part, unduly and unnecessarily convoluted and prolix'. Despite allowing the SRA's appeal in that case, the High Court was very clear in its criticism of the SRA's approach to the pleading.

Sustainable cases

This is not a new message from the High Court. It is therefore troubling that the issue continues to arise, that solicitors are asked to meet cases which are not sustainable on their face. When one considers the impact of proceedings brought or pursued unfairly against an individual solicitor, the issues are truly concerning.

In Heer Manak, proceedings were launched in July 2013. The findings were dated 11 August 2015, more than two years later. A Google search reveals that the firm closed its doors in December 2013, having been unable to secure indemnity insurance at a competitive rate. That time line is both stark and suggestive.

According to the Solicitors Regulation Authority's (SRA) publicity policy, the SRA could publish the allegations on its website from the time that the SDT certified a prima facie case.

In my experience, such publication is closely followed by a downturn in business for the firm. Conveyancing firms find themselves removed from panels, institutional clients take their business elsewhere, word travels through local grapevines, and local networks stop recommending certain firms.

Indemnity insurers must be informed of open SRA investigations. The existence of SDT proceedings is taken into account by potential insurers. Quality assurance schemes, such as Lexcel and the Conveyancing Quality Scheme, may suspect accreditation while investigations or proceedings are pending. The stress suffered by individual respondents and the impact of adverse publicity is incredible.

The SRA relies on the rights of clients and potential clients to make informed decisions about their solicitor to justify publication. It says the public needs to know what action it is taking and why. Yet the SRA is far from infallible, and its general refusal to publish any details of the solicitor's response (even if known) could be said to undermine the principles it espouses.

The SRA decides to publish allegations before it has seen the solicitor's defence. The publication is often a recitation of the allegations without analysis. Unnecessarily complex and prolix allegations may therefore give the impression, particularly to the lay person, that the misconduct alleged is more serious than it really is.

Untold damage

Publications will normally be live for several months, causing untold business damage before a decision is made. If allegations are found to be wholly unsubstantiated, the publication disappears. There is no explanation or apology, and interested parties must dig for themselves to obtain exculpatory information from publications on the SDT's website.

A recent response from the Law Society's freedom of information officer revealed that the SRA does not keep track of the number of visitors to its check a solicitor's record database. It does not keep data as to how many have signed up to RSS feeds. It seems unfair that the largest of the legal services regulators has no procedures in place to monitor the effect and effectiveness of its publications, despite the devastating impact on the lives of individual solicitors, whatever the underlying truth of the allegations.

Notwithstanding its lack of information, the SRA remains determinedly in favour of publication, and has taken to publishing recent decisions to intervene or prosecute a solicitor as a banner on its scam alert page as well as its check a solicitor's record database. SJ

Susanna Heley is a solicitor at RadcliffesLeBrasseur

@RLB_LAW