Before the storm
The causes of conduct that leads to regulatory action are often more informative than the conduct itself, Susanna Heley explains
Solicitors must ensure they are aware of their legal, ethical and regulatory Regulation Authority (SRA) Code of Conduct for Individuals.
That effectively requires all solicitors to maintain a general awareness of developments in professional regulation. One frequent source of useful lessons is the published decisions of the Solicitors Disciplinary Tribunal (SDT).
Unless specifically directed not to be published, all the judgments are published on the SDT website and are freely available in accordance with the SDT’s publication policy. Many are picked up as brief news items on other sites.
For solicitors, considering and understanding key decisions taken by the SDT is one way to understand the approach adopted by the SRA and the SDT in relation to allegations of misconduct.
Some issues highlighted in recent decisions are obvious – running away with the contents of client account or deliberately misleading the court, colleagues, clients, the Legal Aid Agency or the SRA are going to get you struck off – other issues are more nuanced. For example, at what point does a charge become an overcharge answerable as a matter of professional conduct?
It is not always easy to understand the lessons which may be learned from the experience of solicitors facing disciplinary proceedings at the SDT. It can be particularly difficult to understand how long serving solicitors came to make decisions which landed them in difficulties with their regulator. Yet SDT decisions frequently reveal that its findings are not exclusively made against naïve, dishonest or incompetent solicitors; there are a broad range of respondents which frequently include those we might think ought to have known better based solely on age or experience.
One might assume that experience is a safeguard against making regulatory mistakes; but the truth is we all get comfortable in our methods of working and ways of approaching problems. We may become complacent or unwilling to recognise the effects of changing methods of practice and or regulation. There is a danger of underestimating or undervaluing the importance of compliance and focusing on substantive workloads, over keeping up to date with regulatory changes.
I am sure most solicitors have, at some point, had experience with societal expectations that they must know everything about all areas of law because of their role. In the distant past, of course, it was the role of solicitors to have a passing familiarity with broad areas of the law on the basis that they would know when to call in specialist assistance in the form of counsel.
With the increasing specialisation of the profession over the last 30 years or so, that distinction and level of general legal knowledge has largely fallen away. Many solicitors are now subject matter experts rather than generalists.
Also, solicitors training and working in firms of any size are likely not to have needed to develop and maintain thorough knowledge and understanding of compliance issues relating to onboarding of clients and SRA accounts rules. This is because there are compliance teams who deal with such things. One then starts to question what it truly means to be an ‘experienced’ solicitor.
What this means in reality is that a solicitor can be experienced on paper, by virtue of being admitted to the Roll for a significant period, but may have less experience than a newly qualified solicitor in certain aspects of practice and procedure. While the SDT will consider all the circumstances of a case before it, the reality is little allowance is made when an experienced solicitor strays beyond their area of expertise, or sets up on their own and falls into compliance difficulties.
The attitude often adopted by both the SRA and the SDT is that experienced solicitors should be well aware of their own limitations and should know enough to take steps to update their knowledge when needed. It is also important to recognise and acknowledge the long-term impact of stress and mental health issues on solicitors.
While the profession has worked on becoming more open about mental health and wellbeing, a significant number of professionals have grown up in a profession in which openly acknowledging mental health issues was considered a sign of weakness. Thus it can be harder for some to seek help when needed and, as a result, to demonstrate that mental health played a part in any misconduct.
A common argument deployed by the SRA is that medical reports obtained for the purposes of proceedings are inherently unreliable where there is no contemporaneous medical evidence.
The opinion of any medical expert can therefore only be based on the retrospective account of the respondent as to their state of mind; and corroborative evidence is often limited. For those seeking to educate themselves or their staff on how to avoid common pitfalls, it can be worth looking at more than the basic facts of a particular case, highlighting the particular conduct which was in issue.
Often, underlying causes of the conduct are more informative than the conduct itself. Identifying trends and mindsets which may give rise to regulatory risk may help firms to be aware of potential red flags and head off problems before they occur.
A particularly common underlying cause is the fear of coming forward after an innocent mistake has been made. Making clear to staff that disclosure of mistakes will be regarded as a good thing and not, for example, the trigger for a disciplinary process may help avoid perceived pressure to cover up errors.
A significant risk factor can be lack of knowledge on the part of staff as to what is proper or undue deference to an established improper method of doing things. Ensuring effective training and support can help staff understand issues which may not, at first blush, appear too serious. Make staff aware, for example, that fobbing off a client, third party or colleague with less than the truth may be a slippery slope towards dishonesty (and the inevitable strike off ).
Ensure staff know that backdating documents is dishonest if done to create a false impression. Make staff aware that they need to come to you if a reportable issue occurs in their personal life.
For those in smaller firms, ensure that you keep up-to-date personally with obligations such as accounts rules requirements. Don’t just rely on a bookkeeper without checking that your firm is compliant. Avoid simply taking your partners’ word that all is in good order.
Make sure that you plan your exit. Solicitor can get into trouble because they become trapped in their situation – they don’t have, than is advisable; or become depressed without recognising their condition. Things start to slip and the situation snowballs.
These are not lessons which can necessarily be identified from reading short summaries of SDT cases. Rather, they are variations on recurring themes which become clearly apparent over time.