Under caution: how to handle a disciplinary investigation
This article was first published in the Solicitors Journal, August 2019 edition.
Susanna Heley unravels the nebulous notion of a solicitor’s rights while under investigation by the SRA.
I was rather baffled sitting in the Solicitors Disciplinary Tribunal (SDT) recently when the Solicitors Regulation Authority’s (SRA) advocate put to a respondent that he was aware of his rights – in the context of an interview with an SRA forensic investigator.
It left me wondering what on earth the SRA was talking about. Interviews with SRA investigators are recorded and frequently used as evidence but they are not under caution and, in my experience of attending such interviews, a solicitor is never informed of any ‘rights’.
Traditionally, in the criminal sphere, your rights might be taken to include the modified right to remain silent where “you do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court”.
The SRA can’t be suggesting that there is a right to remain silent – modified or not – in interviews conducted as part of its investigations; as solicitors you have an obligation to co-operate with the SRA.
I can’t see the SRA suggesting that you could attend an interview, decline to comment and still be safe from an allegation that you have failed to co-operate with your regulator.
You may also think that an interviewee would have a right to have a solicitor present during the interview and to take breaks to receive legal advice. Whilst the SRA makes no objection to an interviewee being accompanied by a solicitor, there is no formal right to take legal advice in connection with the SRA interview.
If an interviewee were to say they wanted to consult a lawyer mid interview, no doubt the SRA would be sympathetic but there is no enforceable right to terminate the interview at that stage to enable legal advice to be taken before further questioning occurs.
Add to all of this that there is no automatic legal expenses cover for SRA investigations or ensuing disciplinary proceedings and one may be forgiven for thinking that the ‘rights’ of a solicitor being interviewed by the SRA are rather illusory. Certainly, an interviewed solicitor may be forgiven for thinking that they have no real rights in connection with an SRA interview.
This approach is generally in keeping with the assumption underlying all of our regulatory processes; that solicitors will be capable of speaking for themselves cogently and coherently, will be able to explain their actions and, importantly, will not be influenced into making admissions which are unjustified.
Unfortunately, this is often not the case. Many solicitors don’t appreciate the importance of a recorded interview, don’t ask for an agenda in advance and don’t challenge the assumptions of the SRA investigator.
There are a number of reasons for this:
- Recorded interviews tend to be the culmination of an onsite SRA investigation. The interviewee has probably interacted with the SRA investigator perfectly pleasantly over days, weeks or even months. Often an element of trust has been created which, while undoubtedly necessary for the SRA investigator to perform their job effectively, can lead to a real feeling of betrayal during a contentious interview or later when an adverse report is received.
- Most solicitors are out of their comfort zone; without detailed technical knowledge of the rules and how they have been interpreted over time and what factors are relevant in determining whether there has been a breach and how serious it is. They tend to assume that the SRA will get the law right when this is not always the case.
- Solicitors frequently don’t ask to be taken to the relevant documents and just agree with the investigation officer; they rarely ask for time to review documents outside of the interview or to check details on the file outside of what the SRA has to hand.
- Solicitors often don’t clarify what actions the investigation officer is expecting from them after the interview and in what time frame. This can lead to suggestions that the solicitor has promised explanations which have not materialised.
Many of these problems are driven by a misplaced sense that the interview is simply a formality and that the investigation officer is something akin to a friend. In fact, it is unadvisable to treat the interview as anything but extremely serious. My view is that it is usually sensible to take legal advice in advance of any formal interview and to request an agenda.
Interviews should be treated as a form of cross examination – solicitors should try to avoid speculation in an effort to be helpful and should stick wherever possible to clearly demonstrable facts. It is dangerous to rely on memory which is often more unreliable than people think. Time and care should be taken in answering questions and facts should be checked.
Solicitors should avoid making admissions on questions of law. It is the investigator’s job to gather facts not to seek admissions to allegations which will be made later and separately in a letter known as an EWW (explanation with warning). It is not wrong to tell the investigator that you are not in a position to form a final view on any allegation during interview but that you will be happy to deal with any allegations formally in writing.
Records of any requests made by the investigation officer or offers made to provide information after the interview should be taken and clarified to avoid any misunderstanding. Transcripts should also be requested and checked at an early stage.
Where you are a solicitor with a particular vulnerability – if you have been experiencing mental health issues currently or during the relevant period, if you are suffering from stress or if the allegations which are being investigated may also amount to a criminal offence, particular care needs to be taken.
The SRA will often seek to argue that those who rely on mental health difficulties in particular are not telling the truth. They will seek to argue that diagnoses of mental health problems after the fact are, at best, convenient. I suspect that every experienced SDT defence advocate will have had cases in which the SRA has aggressively sought to undermine expert evidence as to mental health.
Given the – admittedly anecdotal – frequent misconceptions as to the status of SRA interviews and the prevalence of mental health and stress problems in the profession, one does wonder whether it is time for the SRA to start giving solicitors formal notice of their ‘rights’ – if indeed they have any.
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.