It doesn’t seem like a week can go by without the Solicitors Regulation Authority making a jaw-dropping revelation.
First it was ‘You will have to sell the family silver to fund interventions’, then ‘You’ll have to find a bit more down the sofa to cover the number of big firms heading for the exit door’. Now it tells us the number of potentially crooked solicitors has almost doubled in the past two years, as miscreants reach into the cookie jar labelled ‘client funds’.
This is great for newshounds needing interesting copy, but must be perplexing for solicitors who don’t know what to expect next.
This week’s announcement – which came during an event to advertise what the SRA called its ‘flagship risk product’ (nope, me neither) – was another to be filed away under ‘Operation Prepare for the Worst’. There may be trouble ahead and the SRA knows it.
Firms are struggling, key revenue streams are being slammed shut (as an aside, Chris Grayling’s climbdown on legal aid this week will do little to help small firms survive) and senior partners’ retirement nest-eggs are hatching and flying off a cliff. It’s not hard to envisage the circumstances in which solicitors are tempted to take liberties with client funds.
The rent is due, your fees have been cut and there is easy-to-access funding which you can always replenish the next month. Except you don’t – there’s another bill landing on the mat and that takes precedence. Before long you’ve robbed Peter to pay Paul, Peter has complained to the regulator and your career is over.
It’s not right, but to paraphrase that esteemed lawyer Atticus Finch, try to climb in that solicitor’s skin and walk around in it. Self-preservation can turn even the most ethical of practitioners into something they’d usually abhor. The whole launch of the Risk Outlook (why always launch by the way? It’s not a ship) was going swimmingly until the question and answer session at the end.
As expected, an audience of solicitors facing the SRA panel was a little reluctant to speak out, until one brave volunteer found her voice. ‘How can you talk about risk,’ she asked, ‘without talking about yourselves?’
Nail, meet head.
The SRA’s biggest problem is the quandary it faces over how to deal with the increased risk of dishonesty.
Clearly, there is a need to monitor potential problems more closely in the interests of the client. But every additional letter, email or call from SRA towers only adds to the regulatory burden and increases the likelihood of solicitors taking risks with what little time they have left. Do nothing and you’re a soft touch; do too much and you’re in the way.
More than one solicitor told me at the launch that they felt the biggest risk was the SRA itself. The regulator may spout platitudes about understanding the profession and reducing the form-filling, but in practitioners’ minds it has brought about an unprecedented burden on troubled law firms.
There is a fine line between assessing and reducing risk and simply getting in the way. Solicitors don’t need reminding that pilfering client funds is wrong. The SRA should be there to help compliance officers when they need it and to remind firms of their responsibilities.
The creation of a whistleblowing ‘hotline’ was an excellent example of hands-off regulation that is there when required.
Ever since the financial strife beset the legal profession, the SRA has faced this catch-22: the more it tries to find a solution, the more it is part of the problem. Increasing numbers of solicitors may well be tempted to be dishonest, but perversely a heavy-handed approach to risk across the entire profession is not going to solve the issue.
John Hyde is a Gazette reporter
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