Time for change

It remains a firmly embedded misconception that disciplinary proceedings are solely or principally about punishment.

Even the use of the term ‘sanction’ to describe the outcome of disciplinary proceedings supports the suggestion that punishment is the goal. 

In fact, the leading case of Bolton v Law Society [1994] 1 WLR 512 teaches us that the punitive element of sanctions is the least important of three elements in considering the purpose of sanctions. 

We are told that the punitive element acts as both punishment and deterrent, but that the more important considerations are ensuring that the transgressor does not repeat the misconduct and ensuring the reputation of the profession is upheld. 

This is the rationale behind many cases in the world of disciplinary proceedings in which the punishment does not appear to fit the crime.

This includes the (in)famous and controversial cases in which junior solicitors have been struck off for dishonesty, despite acceptance that their work environment was toxic or that unfair pressure had been brought to bear in one form or another. 

The decisive factor is not what the individual has done but whether the profession’s collective reputation can withstand retaining any acceptance of dishonesty within the profession. 

The problem with that approach, of course, is that we don’t actually know what the reputation of the profession would withstand. 

All the information which is available (essentially the Solicitors Regulation Authority’s (SRA) Question of Trust 2015 consultation) tends to indicate that the public has different priorities than the profession and, particularly, would be more forgiving of junior solicitors who make mistakes. 

It doesn’t help towards a process of aligning public and professional perceptions that the ultimate arbiters of what is required to uphold the reputation of the profession tend to be (or at least have been) High Court judges with little or no direct experience working for lay clients, except through solicitors. 

It is partially a consequence of this approach that commentators and interested parties are increasingly raising the question as to whether we should have the equivalent of a fitness to practise (FTP) regime to supplement our ex-isting system when illness or incapacity are truly the matters in issue.

As society in general reaches a more informed understanding of mental health and the impact of stress on decision making processes, there is a groundswell of feeling that we have made bad – or at least unnecessarily restrictive – law. 

Whatever the rights and wrongs of the current state of the law – and I have commented on some of those before in these pages – I am not persuaded that a FTP regime allows for a system which would add much to the system that which we currently have. 

The problem is that both the SRA and the Solicitors Disciplinary Tribunal (SDT) have powers to control the practice of an individual who is not considered fit to practice. 

In the case of the SRA, intervention into the practice of a sole solicitor who is incapacitated by illness or injury, and any solicitor incapacitated within the meaning of mental health legislation, are specific grounds for intervention.

The SRA can go further and intervene in a solicitor’s practice if it considers it necessary to protect the interests of clients. 

The SRA can also impose conditions on practising certificates and on a firm’s authorisation as needed, to control the way in which an individual practices. 

The SDT can impose restrictions on a solicitor’s practice and/or suspend a solicitor indefinitely on health grounds. 

The only thing that an FTP regime could realistically add to these powers is a pre-emptive ability for the SRA and or SDT to impose conditions solely on health grounds where there is no reason to investigate or suspect that there has been any misconduct. 

I can imagine the issues which may arise in those circumstances. The very concept seems alien to the idea of equal treatment. 

The fact is, it would not occur to most people that someone being ill is a matter in and of itself for the regulator. 

As employers, firms have a duty of care to their employees and solicitors have individual responsibility to ensure that they are capable of carrying out their own work to an appropriate standard. 

It must follow that if a solicitor does not voluntarily stop working on grounds of illness and is not capable of working to an appropriate standard, there is an issue upon which the SRA’s existing powers can be triggered. 

One would hope that it is not necessary.

A final reason why an FTP regime may not be appropriate is the question of how the SRA would come to know about an individual’s health. If there is no concern about actual or potential misconduct, or actual or potential risk to clients, why would anyone think to notify the SRA?

It is for firms to manage absence through illness and ensure clients are protected and cases progressed. 

Clients are unlikely to call the SRA because their solicitor is off sick if there is someone there to cover, so how could the SRA know when to initiate an FTP process if there is no reported misconduct or actionable issue?

The question that’s really being asked in the current FTP debate seems to be more along the lines of why illness (particularly mental illness) cannot be considered to be an exceptional circumstance which can be dealt with by the SDT with more leniency than is currently permitted. 

That is a discussion which needs to take place, alongside a serious conversation as to how we can encourage well-being more effectively as a profession. 

I don’t think it helps those struggling with stress or mental health to be subjected to increased regulatory scrutiny. 

Dealing with a regulator can often be stressful and time consuming in and of itself.

For most, there is an obvious knowledge and power deficit and the nature and structure of the regulator makes it difficult for an individual to feel supported rather than intimidated. 

That is not to criticise the SRA, but rather to acknowledge the reality that the SRA generally is in control of any investigatory process. 

For most, not feeling in control over what may happen to you tends to cause rather than alleviate stress. 

Firms and individual supervisors need to be clear in their messaging to employees, and particularly junior solicitors, that there is no shame or detriment in admitting to and correcting mistakes. 

As a profession, we need to be more proactive in ensuring juniors are aware of sources of advice and support, and know how to access it, where they cannot get advice from their own firm and supervisors or feel uncomfortable about it.

It is time for a change, but I am not persuaded that introducing an FTP regime is the change our profession needs to see.  

Susanna Heley is a partner at RadcliffesLeBrasseur rlb-law.com