Doing the right thing

The solicitors regulation authority would be irresponsible to dismiss criticism of the regulator as self-interested carping.

Is the Solicitors Regulation Authority (SRA) beastly to solicitors?

This is not a facetious question. Recently, a QC who represents solicitors in trouble with the SRA said that the number of ‘crooks’ he had been instructed by in the last two or three years could be counted ‘on the fingers of one finger’.

He claimed his clients ‘have been almost without exception, honest and decent men and women caught up, for one reason or another, in situations that worry, frighten and perplex them’. He said that those under investigation think that the SRA is not prepared to listen to them and is ‘determined to find something amiss, come what may’.

An eminent solicitor who is also active in this field has said that the ‘deck is heavily loaded in favour of the SRA’, which is ‘in an unfairly strong position of encouraging its targets to dance to its tune’, and that the process is destabilising for firms.

Of course, lawyers instructed by solicitors in regulatory difficulty are hardly likely to argue that the SRA is consistently fair and proportionate. It is their job to do their best for
their clients, after all.

As in the world of criminal justice, a time-honoured technique is to pick holes in the prosecution process and perhaps also allege a degree of heavy-handedness.

I think the QC quoted above must either have been very selective or very lucky in his acceptance of clients.

The fact is that, each year, the SRA refers more than 200 solicitors to the Solicitors Disciplinary Tribunal, which is independent of both the Law Society and the SRA, and the overwhelming majority of solicitors are made the subject of some kind of sanction. In its last reporting year, 67 solicitors were struck off and 33 suspended from practice.

But the bottom line is that the SRA regulates in the public interest, not in the interest of lawyers. It has a duty to protect the public from unscrupulous lawyers and deal with misconduct firmly, but proportionately.

Nevertheless, the SRA would be irresponsible to simply dismiss the criticisms of the lawyers I have referred to as self-interested carping.

As I have repeatedly said, the SRA’s only hope of success is to regulate in partnership with the profession. While our policies and actions will never be universally popular – regulators inevitably have their critics – we need a consensus that the SRA is generally trying to do the right thing, usually in the right way. There is a political need for what is called ‘buy-in’.

Aside from that, I would not be prepared to lead a regulatory body that did not comply with the rules of natural justice. I know that the chief executive of the SRA, Antony Townsend, shares that position.

Solicitors under investigation are placed in a very stressful position: we have a duty to act fairly by them.

Some critics have said that the SRA is over-secretive and that one of the reasons solicitors feel vulnerable when dealing with us is that they have no idea of what to expect. We have been contrasted with the Bar Standards Board in this respect.

This criticism disregards a big difference between solicitors and virtually all the other professions: many solicitors have custody of client funds.

The majority of SRA investigations are of a financial nature. As such, they are likely
to be far more complex and their course less easy to predict. If we suspect that clients’ money is at risk, we have a responsibility to act swiftly.

The SRA also has to be careful not to prejudice the public interest by making disclosures which could be used to thwart an investigation.

Nonetheless, the SRA must not be unnecessarily secretive. We have already published details on our website of the risk matrix that guides our decisions about how to treat
the information we receive concerning solicitors.

We are also publishing our decision-making criteria. The challenge is to strike the right balance between protecting the public interest and giving appropriate clarity to firms under investigation.

I am instigating further consideration of this complex question and hope that we
will be able to benefit from the advice and opinions of lawyers with experience of regulatory advocacy (some of whom accept cases from both the SRA and solicitors).

I am not promising sweeping change, because I am not yet in a position to know whether the circumstances warrant it. But I certainly do accept that the profession is entitled to be confident that our procedures are fair and as transparent as they ought to be. We will achieve that only if the facts are reviewed robustly.

I am pleased to say that a large proportion of our dealings with firms are not in any sense punitive. The SRA’s Practice Standards Unit (PSU) visits around 1,000 firms a year.
The primary purpose of a visit is to help firms to meet their regulatory and, in some cases, statutory obligations.

At a recent Regulation Roadshow, a solicitor put a lot of searching questions to a PSU manager about her unit’s work.

I began to wonder if he was building up to a serious complaint – but then he announced that his firm had just been visited and he had found

it hugely useful. ‘If the PSU say they’re going to visit you, welcome them with open arms,’ he urged our audience.

Peter Williamson is chairman of the board of the Solicitors Regulation Authority