Unceremonious SRA disciplinary proceedings
Solicitors undergoing regulatory investigations for misdemeanours should not have to deal with an apathetic regulator, says Susanna Heley
One of the worst things about acting for solicitors facing regulatory investigations and proceedings is having to tell clients that their careers have, in effect, been put on hold or – in extreme cases – permanently blighted because of the existence of a Solicitors Regulation Authority (SRA) investigation.
It is one thing to acknowledge objectively that regulators acting in the public interest are obliged to the effective reduction of ‘regulatory risk’ than the personal circumstances of an individual.
It is quite another to be faced with a system which puts individuals at risk of being deprived of their livelihood because of relatively minor transgressions without benefit of a hearing of any kind.
An arduous process
The issue is this: regulatory investigations generally take some time. There are times when investigations perhaps lack urgency or simply fall through the cracks and take rather longer than they should.
In the interim, the individual under investigation will have been obliged to notify third parties of the fact of the investigation. These may include their firm, their indemnity insurer, Lexcel, Conveyancing Quality Scheme, and potentially even certain clients.
In practical terms, a solicitor whose firm is prepared to support him through the investigation may be in for a tough time, but has some protection from the impact of the investigation. A solicitor who is without the support of a firm for whatever reason may be unable to find work for the duration of the investigation and any subsequent disciplinary proceedings.
A firm that wants to support a solicitor under investigation may find itself under commercial pressure not to do so because of the approach taken by its insurers or quality assurance assessors.
We all know that uncertainty can be very stressful. The SRA doesn’t often update those under investigation as to the expected timeframe of the next steps. From a practical perspective, that may be understandable. The SRA has finite resources and must prioritise to deal with the most immediate and most serious risks as they arise. As an organisation, it is no doubt troubled by the same personnel issues as all service companies; people occasionally become unwell or leave or are unexpectedly unavailable to meet commitments.
From the perspective of the person under investigation though, the process is a source of both anxiety and frustration. The difficulty of predicting whether explanations will be accepted by the SRA only causes more concern. Delay and uncertainty as to timescale is a frequent source of additional worry.
The solicitor’s sense of grievance may well be heightened by the fact that he is or has been faced with aggressive and accusatory communications from the SRA which seek responses in a short timeframe. Depending on the SRA’s judgement of the urgency of the issue, that could be as short as 48 hours.
The SRA rarely offers more than 14 days for a response of its own volition. Of course, it is possible to seek an extension of time, but solicitors do run the risk of being accused of a failure to co-operate if their responses are late or incomplete.
The system of regulatory investigation that we have is designed to be quite heartless. Regulators are not supposed to be swayed by a sob story. The process is intended to ensure the protection of the public from unacceptable risk and that consideration has to override the needs of individuals. Much is excused in the service of the greater good.
Does that mean that as a profession we should simply accept that our members are treated in this way? The Legal Services Board (LSB) indicated in the summer of 2013 that the duration of disciplinary proceedings was an issue. In response, the SRA included ‘tightened’ key performance indicators (KPI) in its business plan published in December 2013.
Interestingly, every KPI in relation to investigation is focused on urgent and high-risk matters, save for the general requirement that 80 per cent of cases should be closed within 180 days (that’s six months).
It could be that the net effect of the KPIs is that those individuals under investigation in relation to trivial issues may find themselves repeatedly pushed to the back of the queue, despite the fairly obvious fact that it is inherently unfair that they should be put at risk of such serious and obviously unintended consequences.
This article was first published by Solicitors Journal and is reproduced by kind permission. You can read the original article by clicking here.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP 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.