Road to ruin

Everyone knows the collective reputation of the solicitors’ profession should be its greatest asset. That is why solicitors found to have been dishonest are almost invariably struck off. The SRA seems to have a policy of appealing against decisions of the Solicitors Disciplinary Tribunal which find dishonesty but do not strike off the solicitor in question. These appeals have met with some success.

Although it is not the primary function of the SRA to protect the reputation of the profession, I believe it is part of their remit. It is in the public interest to ensure a strong legal profession which has the trust of the public. The SRA must have regard to the public interest in all that it does.

However, some think the SRA’s implementation of its publication policy is potentially damaging to the profession. Obviously the SRA must be transparent and publically accountable for the decisions it makes, but do these decisions really meet these objectives and are they fair to the profession and the public?

What’s wrong?

Lawyers are often accused of ‘lawyer speak’ – they use complex terms and references to the law as if everyone should know what they are talking about. This is not an aid to transparency.

Unfortunately, this is a phenomenon which seems to have infected the publication of some SRA decisions. Although some decisions are well reasoned and explained, I have seen decisions – as recently as 14 February 2011 – which set out that the solicitor in question has been granted a practising certificate subject to conditions and which state as the reasons: when imposing this condition, the authorised officer had regard to regulation 6.1(d) and (e) of the SRA Practising Regulations 2009.

I confess I do not keep a copy of regulation 6 pinned above my desk, so, having looked up regulation 6 (which is neither linked from the decision notice, nor easily located on the SRA website more generally) I discovered that the SRA believes the condition will either help them monitor the solicitor or they think it will help him to practise better.

Having read this illuminating explanation, do I know what, if anything, the solicitor has done wrong? No. Would I instruct the solicitor? No, because there are thousands of solicitors who are not the subject of publication. Would I instruct the solicitor if I knew what had gone wrong? Maybe.

Danger zone

Many solicitors will dismiss this as being of limited relevance to them. That is a dangerous attitude. The SRA is committed to publishing its regulatory and disciplinary decisions. The type of decisions which may be published is expanding. The SRA already has power to publish additional types ofdisciplinary sanction and the list is likely to grow to include decisions relating to: fitness to own; fitness to be a COLP or a COFA; and conditions on firm authorisation.

The list includes a number of regulatory decisions. These are decisions which are taken for the protection of the public. There does not necessarily need to be proof – or even evidence – of misconduct; the SRA only has to show one or more of a list of ‘trigger’ events – not all of which relate to misconduct.

The SRA does give individual solicitors the opportunity to comment on whether there should be publication or not. In practice, though, publication is the rule.

From a firm’s perspective, there are dangers too. Publications include the names of firms as at the date of the matter giving rise to the decision and as at the date of the publication. Firms, in my experience, are not automatically afforded the right to comment on the proposed publication.

I have serious concerns about the publication of the firm names. If, for example, a firm sacks an employee for misconduct and then self reports to the SRA in accordance with its professional obligations, its name is linked to publications about the offending employee for a period of three years from the date of publication (which could be a long time after the dismissal). Similarly, firms will have a disincentive to give solicitors who have strayed from the path a second chance because of the risks of publication.

The SRA database ranks highly on internet searches. Clients searching the name of their solicitor or firm are likely to stumble across SRA entries quite easily.

Persuading the SRA to remove publications can also be difficult. It is particularly disappointing that decisions to refer a solicitor to the Solicitors Disciplinary Tribunal are not removed or updated to reflect the tribunal’s findings. Indeed, the findings of the tribunal are published on a separate page and are not part of the searchable database at all. However, this is an issue which the SRA is aiming to resolve when its IT systems are updated.

Minimising risk

Brand management should be a part of every firm’s risk strategy. The simplest way to avoid publicity is to try and ensure that no adverse decisions are made. In practice, with an expanding number of decisions becoming potentially publishable, the likelihood of firms escaping publication is likely to diminish. Firms should keep an eye on the SRA database as part of their brand management; regularly search the firm name and the names of key fee earners, use technology to manage brands and generate positive publicity.

Where a decision is published unfairly or the decision is unclear, ask the SRA to amend or remove the publication. The SRA reviewed its publication policy last year and concluded that the policy was working well because there had been no complaints or claims made. If firms and solicitors don’t make their concerns known, the problems caused by the policy will never be cured.

Susanna Heley
RadcliffesLeBrasseur

This article was first published by Solicitors Journal and is reproduced by kind permission.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.