Readers may recall back in February when I asked whether the Solicitors Regulation Authority could be trusted to exercise greater power in issuing fines of up to £25,000.
The crux of the problem was that the reporting of existing fines, which could go up to £2,000, was so poor that the regulator needed a sea change in how it communicated decisions - and certainly ahead of any increase in its powers.
The question was partly posed tongue-in-cheek. After all, the organisation that puts such emphasis on transparency would surely get its house in order on this issue, would it not?
As it turned out, the answer turned out to be no.
In the past week, the SRA made its first use of these new powers to fine a solicitor £15,000. It’s a big deal, a landmark moment in the SRA’s wrestling of power from the Solicitors Disciplinary Tribunal. Gordon Kemp was found to have acted for three clients who were the subject of court of protection deputyship orders and failed to attend to or properly manage their financial affairs or protect their money or assets.
Yet how he failed to do so is not made clear. Nor is it apparent what happened to those clients and whether they received any redress. We don’t know whether Kemp contested the allegations or offered mitigation - both factors crucial to fair reporting. We are not told the nature of the misconduct and why the adjudicators (whoever they were; naturally they are anonymous) decided on £15,000. In total, the findings amount to 38 words.
As an aside, the SRA notice didn’t even give Kemp’s full name or year in which he was admitted. These might seem trivial, and it got lucky here (there are no other Gordon Kemps on the roll), but the regulator would be well advised to give these details if it wants to avoid defaming anyone with the same name as a solicitor subject to a disciplinary notice.
But the wider issue is a concern for the whole profession. As noted by regulatory expert Frank Maher, the SRA appears to be ignoring the fundamental requirement for open justice and indeed its own statutory obligation to take action which is transparent and accountable.
In contrast, in what will presumably be one of the last times the SDT issues a fine at this level, the case of solicitor Danielle Shawcross was this week published over 14 pages of detailed summary (she agreed to a fine of £5,000).
The problem appears to be that the SRA has taken on extra powers without taking the time to adjust its reporting processes. The Kemp notice is so short, we are told, because it was written by an adjudicator with no requirement to meet about the length or detail of the notice they provide. That is unacceptable.
But this was all so predictable. The SRA consulted on extending its fining powers first, before asking in a second consultation what the processes should be for reporting such decisions. A response to that second consultation is not due until the new year, so in the meantime the SRA has the power to fine up to £25,000 but no system in place for reporting the reasons. The organisation seems to have been so hungry for greater power it neglected to consider how to exercise it.
One wonders what the SRA’s response would be if a law firm took on a new practice area without having researched how to do the work and without any evidence it could. Perhaps a fine might be in order, though presumably we wouldn’t get to find out why.
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