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Misconduct while ill: difficult choices for the regulator Part III

In the final part of this series on ethical questions arising from the SRA’s Regulatory Settlement Agreement ('RSA') with KP, we look at the position of the regulator. Of the three protagonists identified – firm, individual and regulator – it is perhaps the regulator that finds itself in the most challenging ethical position. It is, after all, the role of the regulator to weigh the facts and the interests of the greatest number of interested parties and to decide whether and, if so, what action is appropriate.

What might we expect the regulator to consider when looking into an instance of potential professional misconduct where the practitioner involved reports having been unwell at the time? The starting point must be the regulator’s core statutory duties: in essence, to regulate in the public interest, including for the protection of the public, and to do so inter alia in a way that is transparent, proportionate and targeted only at cases in which action is needed. That requires a careful balancing of the interests, rights and duties of the parties and the public at large. 

Although there is a perception among some commenters on the Gazette’s news articles that the SRA is frequently over-zealous in its approach to disciplinary action, nobody could seriously deny that there are practitioners out there who, for whatever reason, behave in ways which merit the most serious regulatory action.

Similarly, by seeking admission to the roll, practitioners also submit to the regulator’s supervision, including by means of disciplinary action. The solicitor therefore recognises the authority of the regulator, putting that regulator in a position of power over practitioners. 

There can be little doubt that disciplinary investigation and action are among the most stressful and anxiety-provoking experiences imaginable to professionals given the potential consequences for their career and ability to provide for themselves and others.  

On top of this is the prospect that, should an investigation result in a sanction, RSA or prosecution, the regulator has (and frequently uses) the power to publicise the matter. The rationale for this, in essence, is that it is in the public interest for the information to be available to the public, but its corollary is professional and often personal humiliation for the individual practitioner involved. 

So when making decisions about potential disciplinary action, it is incumbent on the regulator to consider the necessity and proportionality of any such action. It seems obvious that, as a responsible regulator, it should also conduct itself ethically. We might therefore expect one consideration in this equation to be the impact on the practitioner of regulatory action – particularly on the practitioner’s physical or mental health. 

It is here that the question of ethics arises most acutely for the regulator: when reaching its decision to take disciplinary action against an individual, the regulator must weigh all the circumstances of the case and ask itself if it is the right course of action, taking into inter alia: the severity of the potential misconduct; the harm done to a client or any third party; the employment context and firm’s role in the alleged misconduct; the need for action in the public interest; and the ill-health of the individual at the time. It is an essentially ethical question. 

The question takes on even greater significance when one understands that, in many such cases and regardless of the merits of the allegations against them, ill-health means the practitioner’s appetite to defend themselves against disciplinary action can be significantly reduced, potentially leading to fundamentally unjust outcomes. The consequences can be devastating, including the loss of one’s legal career – at times and in the case of KP, by 'agreement'. The same quandary arises when considering the financial ability of individuals to pay for expert lawyers to fight for their interests in the face of regulatory investigation or action when those costs will so rarely be recoverable even if they succeed in defending themselves. 

Are practitioners in genuine and serious ill-health or over a financial barrel seriously expected by the regulator to be in a position to defend themselves as fully as the potential gravity of the outcome can often merit? And is it proper for the regulator to pursue significant disciplinary action to the fullest in the knowledge of those circumstances? It is easy to see how readily honest practitioners might end up in the most invidious positions imaginable.

Two matters repeatedly raised by commenters are the perception that the SRA has been prepared to pursue individuals suffering from ill health at the time of the alleged misconduct and, when doing so, to pursue matters appearing to relate to alleged misconduct at the lower end of the scale of seriousness. In essence, the commenters call into question the SRA’s approach to the proportionality of and necessity for disciplinary action. Consequently, many are critical of the SRA’s approach and, judging by a number of the comments across a range of articles, there has been a significant breakdown in the trust of solicitors in the regulator to carry out its duties fairly and ethically.

Maybe some commenters are taking an unduly hard line, given that it is not always possible to glean a full – or even adequate – understanding of the circumstances of a particular investigation or action to form a clear view. But there can be little doubt that these sorts of situations place particular onus on the regulator to scrutinise their decision making even more closely.

Perhaps, in such circumstances, instead of simply considering the range of traditional sanctions available, the regulator could ask itself, from an ethical perspective, whether some lesser action – for example, in the form of professional support, monitoring and mentoring – would have potentially greater utility? It would again depend on the facts of each case but the potential for such 'alternative remedies' to be applied by the regulator would fall squarely within the regulator’s wide discretion in carrying out statutory duties. It would enable it to fulfil its duties to protect the public and to regulate in the public interest whilst also offering a compassionate and constructive approach to its powers of enforcement in appropriate cases whilst ensuring honest, hard-working practitioners are not driven out of the profession.

The regulator might further ask itself whether, in appropriate cases, it might not be as effective and fair to involve the firm itself in the investigation and disciplinary process. This might encourage the firm to take responsibility for and work with the individual to ensure – where the working relationship permits – a sure footing from which both might work going forward. 

Adopting such alternatives may also ultimately, in turn, lead to a softening of the position of some of the more hardened commenters among the profession and a more collaborative and trusting relationship between firms, practitioners and the regulator in the future.

This article was first published in the Law Society Gazette.
Gideon Habel
29 October 2018

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