The profession is in favour of a more open and transparent system of disciplining solicitors, writes Peter Williamson


Should your clients be able to find out if you have been the subject of regulatory decisions by the Solicitors Regulation Authority (SRA)? Might there be merit in making and publishing agreements between the SRA and firms at the end of investigations where we have been able to resolve the issues?



You might imagine those questions would get a resounding ‘no’ from the profession, anxious to maintain its high reputation. However, the majority of views expressed in our recent consultation were in favour of more transparency over our disciplinary decisions – subject to proper safeguards. So this aspect of our regulation is set to change in quite a fundamental way.



From the start, it was clear that there was a problem with the status quo. At the moment, findings and orders made by the Solicitors Disciplinary Tribunal (SDT) are made public – and published here in the Gazette. Information about some conditions on practising certificates is available to the public, but few consumers know how to check. However, information about our reprimands, which can often involve quite serious matters, is not in the public domain. It is a confusing picture for both solicitors and consumers.



The view of the SRA board is that there is a strong public-interest case for publishing more information about our regulatory decisions. The benefits are obvious. First, greater transparency will help consumers and others choose a solicitor. Consumers should be able to turn to the regulator to find out about proven disciplinary matters and receive information they can understand.



Second, there will be a deterrent effect in naming and shaming. Knowing that a regulatory decision could result in a public black mark against a firm will focus minds on client care and management responsibilities.



Third, it will mean that in cases where the SRA considers a published sanction is the right outcome in the public interest, particularly if the solicitor acknowledges his or her error and has shown a wish to put matters right, there will be no need to refer the solicitor to the SDT – freeing up the SDT for cases where its powers may be needed.



This will also be a public demonstration of how the SRA regulates the profession, emphasising that it is an independent body that is setting and monitoring the standards.



As you might expect, other regulators which do make their decisions public welcomed our proposals. But a considerable number of the profession also supported our ideas.



Overall, 75% of respondents to the consultation were in favour of making public our regulatory decisions, while more than 80% agreed that the SRA should be able to enter into agreements with solicitors to settle our investigations.



This settlement option is a new measure, though used by other regulators. It would provide us with greater flexibility. For example, we may agree with solicitors that, as well as accepting a reprimand, they take corrective action, such as repaying money to clients that we believe should not have been taken as costs. This process can offer increased public protection as well as being quicker and more certain than a formal adjudication.



It will be important to use these agreements carefully. They should not be seen as a way of avoiding disciplinary action. Ultimately, we must decide when an agreement is appropriate and whether the terms are made public. Where a solicitor does not comply with the terms, we will be able to continue our investigation. Failure to comply will in itself be misconduct.



So how might it work? One of our first tasks will be to assess the impact. The consequences of publishing disciplinary information could have serious effects and there will need to be appropriate thresholds and safeguards, including the right of appeal to the SDT. The SRA website was the most favoured place to publish this information, but this may not be the only outlet. Key decisions still have to be made about access to the register of solicitors and this would seem to be the natural place for information that has to reach the public.



We will have to decide about how long this information should be available. And we will have to ensure that publication is timely and accurate. Many of the issues raised by the consultation are likely to be incorporated into our policy as we go forward.



It is interesting to note that our work on this issue has come at the same time that the Legal Services Bill is going through Parliament. A government-tabled amendment has just been put forward saying that the regulator should be able to publish rebukes. A more open and accountable system of regulation seems to be on the way.



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Finally, dare I ask whether you have yet studied the Solicitors Code of Conduct, which is coming into force on 1 July? If not, I urge you to visit www.rules.sra.org.uk.



The relevance of most of the rules will vary from solicitor to solicitor, depending on their area of practice, client base and other factors. However, rule 1, which contains six core professional principles, is universally relevant.



We do not claim the code is perfect, but it does represent a huge step forward in terms of clarity, simplicity and suitability for modern business conditions. We will be interested to hear your reactions and views on it.



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