Bringing the profession into disrepute

It is wrong in principle because the Solicitors Regulation Authority (SRA) is a regulator, not a public relations agency. The reputation of the profession is a proper concern for the Law Society, but not the SRA. It is wrong in practice because the SRA has limited resources. Every hour spent investigating solicitors’ private lives is not spent rooting out fraud, incompetence and threats to justice. And it is wrong in law because the Legal Services Act 2007 sets out the SRA’s regulatory objectives and the reputation of the profession is not one of them.

A few examples

When a solicitor hit his mother with a saucepan during a family row he was banned from practising. When another had a consensual albeit drunken one-night stand with a subordinate he was initially ordered to pay almost a quarter of a million pounds. Drink driving will lead to the SRA fining you thousands of pounds, on top of the court’s punishment. And solicitors who post on social media are punished if the SRA feels they have said something ‘offensive, derogatory or inappropriate’.

Obviously, such cases may sometimes reveal that a solicitor has an alcohol or mental health problem, lacks integrity or is otherwise a danger. But that is different to fretting about the reputation of the profession.

Justifications

The SRA (and indeed disciplinary tribunals) commonly quote Lord Bingham MR in Bolton v The Law Society (1994), when he said that “the most fundamental purpose of all” of disciplinary sanctions was “to maintain the reputation of the solicitors’ profession”. That sounds like decisive authority for the SRA’s approach. It isn’t, for two reasons.

First, if you read Lord Bingham’s comments in context, his concern was that the profession should deserve a reputation for honesty, so that the public should have “a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness” (emphasis added). He did not see the reputation of the profession as an end in itself.

The killer point

But in any case, these days the SRA’s goals are set by the Legal Services Act 2007. Its seven ‘regulatory objectives’ are sensible things like improving access to justice and promoting the interests of consumers. Only one is remotely relevant for the present purposes. That is ‘encouraging an independent, strong, diverse and effective legal profession’. Parliament could have added a duty to promote the reputation of the profession, but it didn’t.

Nonetheless, the SRA insists that solicitors have a duty to uphold ‘public trust and confidence in the solicitors’ profession’. It claims that ‘confidence and trust’ in the profession is ‘critical for the users of legal services’. This bald and unconvincing assertion seems a feeble justification for regulating solicitors' private lives.