Professional discipline update January 2022
Leigh Day Regulatory & Disciplinary team's quarterly update on professional discipline.
I hope you have settled into the new year having enjoyed a restful break.
It appears I may have been somewhat optimistic in our last newsletter in welcoming a return to some normality in the latter part of 2021. I know that the return to working from home will have impacted everyone differently, but there does now appear to be some change on the horizon with the Government’s announcement of a return to Plan A. Despite this, I suspect many more people will continue to work from home, even if only part-time, than did before the pandemic hit. Whatever the benefits or downsides for you, I hope that an awareness of some of the resources included below might prove useful either in supporting you or someone else you know who may be struggling as a result of working from home.
As ever, the SRA continues to cause controversy with the recent announcement of the case of SRA v Ellen and the proposal to increase its fining powers. I hope the following provides a useful summary and some food for thought.
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Protecting the SRA in costs – time for change – read our opinion piece in the Law Society Gazette.
The principle that the SRA ought to be protected from adverse costs orders except in the clearest cases of unreasonable prosecutorial conduct resulted recently in a solicitor who had successfully defended all the SRA’s allegations nonetheless having to foot (through her insurers) her own £534,000 legal costs. The principle protecting the SRA dates back to a time when SRA-mandated minimum terms of indemnity insurance included cover for such costs. The SRA’s decision in 2010 to remove that requirement means solicitors have to take out separate insurance against the risk, pay their own way – aware that the legal costs can amount to hundreds of thousands (and, exceptionally, millions) of pounds and that they are highly unlikely to recover these costs even in the event they are successful – or (most often) go it alone without the sort of specialist legal advice and support that can make all the difference. We believe this imbalance between the SRA, as investigator and prosecutor, and those it regulates is intolerable and has to change. Read our piece on this in full in the Law Society Gazette, published on 20 January 2022.
SRA proposing to increase their fining powers
In the context outlined above, it’s arguably concerning that the SRA is consulting to extend its internal fining powers of firms and individual lawyers from £2,000 to £25,000. In light of the proposed extension of the SRA’s powers, it’s important for practitioners to engage with the consultation (see below for a link to the consultation). The rationale for the SRA to gain greater fining powers is that increasing the SRA’s ability to impose such fines will result in reduced costs on either side (for SRA and respondent) and a reduced burden on the SDT (through disposal of a greater number of cases without referral to the SDT).
There’s also an argument that cases where an increased sanction is appropriate will be resolved more quickly and, potentially, with less publicity than if the case were referred to the SDT. The SRA makes clear in its consultation that the most serious cases will still be referred to the SDT, so the increase to its fining powers will not replace the ability to refer to the SDT.
While it is clear that proceedings before the SDT can be expensive, those costs do come with the benefit (for the respondent) of the SDT’s independent oversight of matters. This is particularly important if we consider that, in the recent case of SRA v Ahmud, the SDT found that the SRA had acted with a ‘lack of diligence and transparency’. Moreover, and as highlighted in previous quarterly updates, disproportionality and unfairness are baked into the system, particularly along lines of race and ethnicity.
On one view, the SRA’s proposals manifestly risk compounding those inequalities. We would like to see the SRA prioritising effective engagement with the issues documented in our white paper and demonstrating fairer outcomes from its decision-making processes, before it seeks greater powers of sanction. Sanctions that firms and individuals may, if the proposals go ahead, agree to for commercial reasons and for matters of expediency and reputation rather than what, objectively speaking, is right.
The consultation is on the SRA website and closes on 11 February 2022.
The importance of checking in
The return to working from home and the huge numbers of people getting Covid makes it ever more important to check in with colleagues and friends. We found an insightful article by the BBC which aims to help readers spot the signs of depression and anxiety in others and provides readers with guidance to encourage healthy conversations with colleagues and friends. There is also training by the Zero Suicide Alliance on supporting people who may be socially isolated, provided for free or a voluntary donation. As always, we encourage people to look at the organisation LawCare who are doing wonderful work to support and promote wellbeing across the legal community.
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Insights and articles since our last update
The team has written on some other key issues in the regulatory and disciplinary field, which you can read by clicking on the headings below:
- Achieving regulatory fairness: a disproportionately slow process?
- Legal services: Price and service transparency
We can help
Whatever your professional discipline or particular area of expertise, if you need expert guidance on regulatory compliance or regulatory investigation/regulatory prosecution, speak to one of our team. Email: firstname.lastname@example.org or call 020 3780 0406.