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Professional discipline update November 2019

Special Edition: SRA Standards and Regulations

Today marks an important day if you’re one of the large community of lawyers in England & Wales regulated by the Solicitors Regulation Authority (SRA) as the new Standards and Regulations (StaRs) come into effect.

The SRA’s aim of putting matters of professional judgement back into the hands of individual solicitors has the potential to be greatly empowering, enabling greater flexibility in how to go about achieving regulatory compliance for you and your practice. The StaRs make clear that:

“You must exercise your judgement in applying these standards to the situations you are in and deciding on a course of action, bearing in mind your role and responsibilities, areas of practice, and the nature of your clients.”

But, as the Peter Parker principle teaches us, ‘with great power comes great responsibility’, and doubtless the SRA appears to have had this firmly in mind when setting these new parameters for the profession.
 
“Our codes provide a benchmark which solicitors and firms are expected to meet. In doing so, we will not second guess the approach they take or the way in which they choose to comply. We do, however, require all those we regulate to […] be able to explain and justify their decisions and actions.”

In this edition of Leigh Day’s regulatory & disciplinary update, we give you our take on the two of the most important changes you need to be aware of and some of the potential implications for you and your business.





Frances Swaine, managing partner and head of regulatory and disciplinary, Leigh Day. 






If you’re in any doubt about what the changes mean, or if you have a regulatory, ethical or professional conduct matter affecting you or your practice, contact us in confidence on 020 3780 0406 or at RDteam@leighday.co.uk for a free, no obligation discussion about your options.

Reporting obligations

The evidential threshold at which you have to report misconduct is changing dramatically. In very brief and broad terms: going forward, the duty to report – promptly – is triggered if you have a reasonable belief that something has happened that could amount to a serious breach of rules. You no longer need to satisfy yourself that serious misconduct has taken place.

The rules apply not only to your own conduct and the conduct of others at your firm but also of SRA regulated third parties, like solicitors on the other side in litigation.

We’re moving into an age where the number of reports about potential misconduct is likely to soar. Given the implications for the person or firm whose conduct is questioned, weighing when, how and what to report are important questions that must handled and resolve carefully and expertly. The simultaneous move by the Solicitors Disciplinary Tribunal to judgment on the “balance of probabilities”, which has the potential to raise the SRA’s eye­watering success rate of around 96% to yet greater heights, make this an even more delicate exercise.

How this all plays out in practical terms remains to be seen but firms and individuals will need to give very careful thought to what, when and how reports are made to the SRA in every case

Personal accountability

This most significant change is both fundamental and nuanced. Professional conduct is already, in general, a responsibility that rests on the individual. The new rules, though, make it personal in a way that gives the individual responsibility greater weight.

“You are personally accountable for compliance with this Code […] and must always be prepared to justify your decisions and actions.” […] “The [standards] apply to conduct and behaviour relating to your practice, and comprise a framework for ethical and competent practice which applies irrespective of your role or the environment or organisation in which you work”.

This emphasis on personal accountability is also reflected in new provisions on supervision of the work and competence of individuals you manage, including, effectively, their continuing professional development. This might appear to be a step change in approach, potentially fixing senior staff with responsibility for the incompetence of those individuals they supervise. Its effects, though, could be offset by the same principal of personal accountability itself, which would necessarily include the accountability of qualified supervisees, at least.

The two Codes of Conduct – one for individuals, one for firms – mean the SRA sees continued value in being able to wield power over firms. However, the SRA’s emphasis on ethical practice and exercise of professional judgement means that it will surely continue to look primarily to individuals for explanations – and enforcement – when the need arises.

We can help

If you’re a solicitor, law firm manager or compliance officer, you and your teams need to understand what the new rules mean for you in practice and what steps you can take to “future proof” if you’re called to account for your decision making. Contact us for advice at RDteam@leighday.co.uk or call us on 020 3780 0406.

Keep in touch

You can find out more about Leigh Day’s regulatory and disciplinary team and and how we can help you on our  website, via our  brochure and  "2 minutes" video. If you would like to speak to a member of the team, contact us on 020 3780 0406 or at RDteam@leighday.co.uk.

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