Professional discipline update March 2019
The first quarter of 2019 has seen a flurry of activity from the Solicitors Regulation Authority as it prepares to roll out its new Standards and Regulations
In this month’s bulletin from the regulatory and disciplinary team at Leigh Day we look at some of the key points you need to be aware of.
The team has been busy, too: highlights have included advising a high-profile charity on its GDPR obligations at a crucial time and advising a client with a mental health disability about a potential discrimination claim against the SRA and assisting with a complex application for admission to the Roll of solicitors. We’re grateful to these clients for allowing us to share this information with you.
If you have a regulatory or professional conduct matter affecting you or your practice, please contact us in absolute confidence on 020 3780 0406 or at RDteam@leighday.co.uk for a free, no obligation discussion about your options.
Managing Partner and Head of Regulatory & Disciplinary, Leigh Day
Our Associate, Emma Walker, will be attending the Law Society’s Risk and Compliance conference in London on Friday 15 March 2019 and you’ll be able to follow her insights on Twitter. If you’re attending too, get in touch by email, on Twitter or LinkedIn – or just seek her out on the day.
Are you ready for SRA Standards and Regulations?
It’s nearly three years since the SRA announced its “Looking to the future” review of the Solicitors’ Handbook. In February, the SRA published the latest version of its new SRA Standards and Regulations and confirmed they will come into force this summer. With the Handbook stripped back from over 400 pages to just 130, separate codes for individuals and firms and some radical changes about how solicitors may work outside law firms, it’s a step-change in legal regulation.
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The SRA's consultation on reporting obligations
Also in February, the SRA responded to its August 2018 consultation about reporting concerns. The consultation sought views about the appropriate threshold at which solicitors must report misconduct to the SRA. The result is the scrapping of duties to report “serious misconduct”, “serious failure” and “material breaches”, replaced with a duty to report without the need for a breach to be confirmed before doing so. The new duty will be to report “facts or matters that you reasonably believe are capable of amounting to a serious breach […] by any regulated person (including you)” and “any facts or matters that you reasonably believe should be brought to [the SRA’s] attention”. Effective reporting and self-reporting are vital to the integrity of the regulatory regime but can be very damaging to you and your firm if not properly managed.
Negotiating NDAs: do you know where your duties lie?
The controversy around the use of onerous confidentiality clauses (commonly known as non-disclosure agreements on “NDAs”) at the end of employment relationships as a means of “gagging” employees rumbles on. In March, our Associate Gideon Habel wrote a piece for the Employment Lawyers Association Briefing on the vexed question of the competing duties owed by solicitors when drafting and advising on them. Balancing (among others) your duties to your client, upholding the rule of law and the administration of justice, not to mention the duty not to take unfair advantage of others, can be extremely challenging. Do you know where your duties lie? If you are in any doubt call us on 020 3780 0406 or email us RDteam@leighday.co.uk.
Notable case: The SDT's decision in another mental health case, SRA V Pamma
In our last edition, we highlighted the High Court decision in the SRA’s appeal in Sovani James & Others. In that case, the High Court reinforced the “red line” on sanction in cases of dishonesty by reversing three SDT decisions not to strike off solicitors found to have acted dishonestly who had blamed, in part, the high stress of their jobs for their misconduct.
In January, the Law Society Gazette reported another dishonesty case, SRA v Pamma, where the solicitor in question claimed to be suffering from mental health issues at the time of the misconduct. Ms Pamma cited mental ill-health caused by traumatic experiences in her personal life as causative of her dishonest conduct. She presented expert evidence of her psychiatric condition at the time, which the SDT panel accepted. Instead of striking her off, the SDT suspended her indefinitely, leaving open the possibility of a return to practice in the future.
The quirk was the timing: the SDT hearing in Pamma was sandwiched between the High Court hearing and giving judgment in the appeal in James. Perhaps unsurprisingly in light of the High Court’s decision in James, the SRA has appealed the SDT’s decision in Pamma. It will be interesting to see the approach the High Court takes in this case, where the accepted evidence was that Ms Pamma was suffering from mental ill-health unrelated to her work at the time of her misconduct. Watch this space.
Read Gideon’s article on the case in full together with all the team’s articles and blogs.