In-house lawyers facing a dilemma about whether to report themselves to the regulator should record their decision-making to see off any future allegations, a regulatory specialist has advised.
Andrew Pavlovic, a partner with London firm CM Murray, said practitioners need to be able to show their working if they have decided not to self-report. His analysis came following a case in which an in-house solicitor was fined £15,000 by the Solicitors Disciplinary Tribunal for using inappropriate, unprofessional and rude nicknames for colleagues.
The matter came to the attention of the Solicitors Regulation Authority only when an article was published in CityAM on the outcome of an internal investigation by the solicitor’s employer. A member of the public complained to the regulator after seeing the online article.
During the hearing, the solicitor was criticised by the SRA for not self-reporting. The tribunal said such criticism was unjustified given that the employer itself had decided not to report the matter.
In an online blog, Pavlovic said the case highlighted the predicament of in-house lawyers with little compliance support around them who often have to decide on their own whether their conduct is serious enough to be reported.
SRA rules state that the solicitors must report promptly any facts or matters that they reasonably believe are capable of amounting to a serious breach.
Read more
But as Pavlovic pointed out, this requirement has become more difficult to judge as the SRA has increasingly focused on non-financial infringements such as sexual misconduct and bullying in the workplace.
Such decisions in a private practice would usually be delegated to a compliance officer but this is not available to in-house lawyers, some of who might not even work in a regulated environment.
‘They may find themselves having to make difficult judgement calls as to what is reportable with little/no support,’ Pavlovic. ‘Whilst SRA guidance on solicitors reporting themselves does indicate that regulatory or disciplinary findings may need to be brought to their attention, this does not mean that all disciplinary findings will need to be reported.’
Pavlovic said in-house lawyers should seek out SRA guidance and speak to colleagues in other organisations about their options. They should also ask their employer for training on regulatory issues and record whether this has been offered.
Crucially, they should make contemporaneous notes to justify their actions which could be useful further down the line if the SRA alleges they failed to comply with reporting obligations.
‘It is vital that individuals in such circumstances are able to justify their decision making and show that they considered their regulatory obligations at every stage of the process.’
No comments yet