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Mr Crawford,

Thank you for replying. DBS checks are now made, for entrants to the profession, those seeking restoration to the Roll and also, I believe, those who apply to become COLPs.

The solicitor convicted of fraud has had his criminal due process, but as you know, the regulatory due process is a different matter. Separation can help protect the public - for instance, when a solicitor is acquitted of fraud but the regulator still suspects he has been dishonest, but in any event they are two separate procedures with different case law, etc.

I can see why the Pickard case might be used in support of an option of judicial striking-offs at sentencing, but Pickard will receive his regulatory punishment one way or the other, just as all convicted solicitors do, and it will most likely be a striking-off. I can understand why his conduct might affect the reputation of the profession, but the damage has already been done. He is now suspended from practice and only nominally a solicitor pending his disciplinary hearing. I can't think why anybody would believe the disciplinary process is pandering to him.

Regarding the broader issues, the crux of the matter is that there has been a cultural change in the profession that mirrors a cultural shift in wider society. Until the late 1990s, the attitude to disciplined solicitors was relatively enlightened. It was perhaps easier for solicitors to be struck-off, but it was also easier to be restored to the Roll after a period of years. Even a solicitor convicted of fraud could expect a fair hearing for restoration after maybe 10 years or so, and until the 2000s, it was also quite common for solicitors convicted of offences of dishonesty to be suspended and allowed to resume practice after completing their punishment.

We cannot return to that state of affairs, even if it were desirable to do so, but it may be helpful to recall the reasons for it, as I think something valuable has been lost in the process of bureaucratising the profession.

In the past, it was recognised that people who became solicitors were generally law-abiding, and so to err was considered out-of-character. Nobody joined the profession to exploit and abuse others or act criminally. Consequently, it was considered possible for an offender to rehabilitate himself satisfactorily within the profession. There was a concept in society of an offender having 'done his time', who would then have the chance to put his past behind him and work to restore his position in the community. Thus a 'dishonest solicitor' could become an 'honest solicitor' again.

The profession itself had self-confidence and recognised that its autonomy and independence depended on the ability to self-regulate and, in appropriate cases, rehabilitate disciplined solicitors - rather like what happens today in the medical profession, where a struck-off doctor can normally expected to be restored after a period of years.

Part of the problem is that we have forgotten what is meant by 'self-regulation'. When it really existed, it meant not just that solicitors govern and regulate themselves collectively, but also - and more importantly - that each individual solicitor regulates himself. This has been abandoned in favour of top-down micro-regulation, whereby each solicitor is supervised by a Soviet-style central bureaucracy that has the job of ensuring that every rule, principle of guideline is complied with in a manner that the bureaucrats dictate is 'compliant'. There is no professional spirit anymore in this 'SRA model'.

Society at large was also more homogeneous in the past and the solicitor brand of the profession, reflecting this, was more of an integrated community (rather like the Bar still is, to a large extent) into which new entrants recognised implicitly the standards expected of them and you generally knew the people you were dealing with professionally. This is less possible in a multi-cultural society, where regulation can be more efficiently delivered using top-down rule-making - i.e. the SRA model.

The benefit of the SRA model is better consumer protection and, if anything, less dishonesty and less misconduct (it seems like there's more because it is now harder for solicitors to cover-up wrongdoing, so the detection rate is higher).

The downside of the SRA model is that we are no longer a profession, which causes lots of problems that are not necessarily immediately obvious to the public.

Really, you have to take your pick between the two. Each approach has its upsides an downsides. Personally I would rather we are a profession, accepting all the difficulties and problems that go with it.

But you can't solve 'dishonesty', it's just human nature. The old professional compact began to unravel with the Bolton ruling, which stated that a solicitor should be "trusted to the ends of the Earth". That is an unrealistic standard. Nobody can be trusted to that extent. The result is that we now have silly cases where a young, inexperienced solicitor might act stupidly under pressure and be struck-off for something that in the past might have earned them a stern reprimand, or at worst, a suspension. The benefit of this is consumer protection - but the price we all of society pays for this is that we now no longer have an independent legal profession.

You have to decide - will it be a rejection of Bolton, which is what I advocate? Or will it be the Bolton standard where the concept of the 'honest solicitor' becomes a legal fiction and is thereby drained of its true meaning.

The problem is that the SRA in the SDT are now parroting Bolton in every dishonesty cases as if it is gospel, saying that a 'dishonest solicitor' can never go back to being an 'honest solicitor'. This is a clear abuse of the concept. It's not one or the other. Rather, it's a recognition that during the course of a professional career, a human being will err, in some cases very seriously, but can become an 'honest solicitor' again.