Solicitors left in limbo

The SRA must act more quickly to investigate allegations against solicitors who have been refused a practising certificate, urges Susanna Heley for the Solicitors Journal.

It’s that time of year again. Three months after the deadline for renewal of practising certificates, the decisions taken by the Solicitors Regulation Authority (SRA) to impose conditions or even refuse applications start to filter onto the SRA website.

Having a condition imposed on your practising certificate can often be burden enough — it has been described quite evocatively as a ‘death knell’ for a solicitor’s career in some circumstances. Think, though, of those who are refused a practising certificate. A solicitor without a practising certificate is faced with particular regulatory concerns. They have all the burden of being a solicitor, including restrictions that may affect their employment, with none of the benefit — the rights to conduct reserved work and hold themselves out as a solicitor.

Employment concerns

In the employment market, if they want to work in their chosen field, they may be at a severe disadvantage as against those who are not on the roll at all. They cannot, for example, work as a paralegal for a solicitor’s firm: they would need a practising certificate for that, despite wholly unqualified people being able to take on such roles. Their qualification carries with it a sometimes complex burden of uncertainty as to what they can and cannot do. Straying across the line can have very serious consequences.

This is all very well when a solicitor has taken the informed decision to remain on the roll and not seek a practising certificate. Where, however, a solicitor — particularly one already in practice — is refused a practising certificate, the situation is different. A solicitor is immediately prevented from plying their trade. They cannot continue to work for their employer in a lesser role if the employer is a law firm, or the employment depends on their being a solicitor, or if they are otherwise held out as a solicitor.

Delayed proceedings

One might hope, therefore, that the SRA would take serious pause before refusing a practising certificate application; it is a very serious decision to make, particularly given the potential to impose conditions to manage any perceived risk.

Should the SRA deem a refusal of a practising certificate appropriate due to allegations of misconduct, one might hope that the SRA would use all possible speed to see those allegations properly considered and determined, not least because a solicitor may not be permitted to remove their name from the roll to regain their lay status (and, potentially, employment) until disciplinary proceedings have concluded.

It cannot be controversial to suggest that a solicitor should not be left in a state of enforced limbo unfairly or any longer than is strictly necessary. Even a struck-off former solicitor has more options open to them than a solicitor unable to gain a practising certificate. Refusal to grant a practising certificate is, in some ways, more problematic for a solicitor than being struck off. And let us not forget that the SRA will publish the refusal to grant a practising certificate.

Unless solicitors (who may have suddenly found themselves both unemployed and unemployable) can afford to mount a successful challenge to the refusal in the High Court — potentially at considerable expense and high risk given the leeway afforded to regulators, generally in the public interest — they must accept that they have been tried, convicted, and condemned by the SRA without ever having the right to be heard in their own cause.

The SRA, meanwhile, is under no particular pressure to ensure that the allegations against the solicitor are brought to a proper resolution swiftly, save that its key performance indicators set targets for issuing proceedings (up to eight months in complex cases) from the date of the decision to refer. This does not account for the time taken to get to the decision to refer, and delays of months or even years in progressing investigations even to that stage are not uncommon.

The financial impact and feeling of powerlessness that comes from finding yourself in such a situation are stressful and can be extremely bitter pills to swallow. The lack of information about progress on any potential prosecution is frustrating and adds insult to injury. Is there really a way to justify any delay in bringing a prosecution?

This article was first published in Solicitors Journal