Disciplinary proceedings inflict unnecessary damage

The SRA needs an approach to solicitors accused of misconduct that, while robust, does not lack compassion, argues Susanna Heley

Solicitors facing disciplinary proceedings are, I think all would agree, in a distinctly unenviable position. Not only do they have to find funding to pay for their own defence with practically no hope of recovering any part of the funds paid, they also have to contend with the potentially serious reputational and economic damage to their business and employment prospects arising from publication.

Trapped by the process and severely restricted in taking any steps to move on within or even outside the profession, the solicitor will inevitably have been severely damaged by the disciplinary process by the time the investigation is complete or the allegations are finally determined, leaving aside any sanction actually imposed.

The longer the process lasts, the more damage can be inflicted.One might say that those facing such allegations have brought their predicament upon themselves. It is part of the cost of straying from the straight and narrow. That may be partially true, but don't we, as a profession, have an obligation not to inflict unnecessary damage? To make sure that the system, while robust, is not lacking in compassion?

Solicitors facing disciplinary proceedings fall into any number of categories, from those who have fallen into error through inadvertence, illness, or naivety to those who have deliberately and flagrantly breached the rules for as long as they could get away with it.

Irrespective of motive, illness, age, or difficulty, the current ethos underpinning our disciplinary regime is not to allow those who have strayed
to leave the profession quietly and with their dignity intact,
but rather to parade them through the process, inflicting every measure of humiliation
so that they may be held up as
an example.

Settlement agreements

It is open to the Solicitors Regulation Authority (SRA)
to seek to agree regulatory settlement agreements in appropriate cases. However,
it is usual for the SRA to require admissions to all or nearly all allegations in order to agree a regulatory settlement.

In cases where dishonesty is alleged but denied, it is almost impossible for a solicitor to do anything but engage with the process and try to clear their name. Even if the solicitor has no intention of practising ever again and is willing to remove themselves from the Roll, there is practically no scope for them to leave the profession voluntarily.

Solicitors may therefore be faced with the wholly appalling choice of admitting dishonesty or a lack of integrity in order to obtain an early resolution to proceedings, despite not truly believing that their actions were dishonest or lacked integrity.

Of course, part of the deal
is that the SRA will, in almost
all cases, require that the settlement agreement contains an express admission to the allegations and the entire agreement will be published.

The solicitor therefore has
all the disadvantages of being convicted of dishonesty or lacking integrity, with the attendant reputational damage and impact on future career prospects even outside the law - and the only benefit is avoiding a hearing. A cynic may suggest that this approach to regulatory settlement agreements renders them something of a Hobson's choice. Trust exercise

The results of the SRA's question of trust exercise - flawed as I personally believe it was - seem to confirm that the public at large does not have quite the same view of the profession as the profession has of itself.

We are told the results indicate that the public is more forgiving of the misuse of client money if
it is paid back than the profession is.

The public is, however, more concerned if solicitors stray into giving advice in areas where they are not competent and are not sufficiently protective of client confidentiality.

The SRA has taken the results
of the exercise as a renewed mandate for its approach, but
I would suggest that actually the public is more prepared to accept a more compassionate system than the profession has been.

Of course it is important that solicitors should be entirely trustworthy and that we should be willing to take appropriate action to remove those unsuited to the profession from the position of trust it affords. One does have to wonder, though, whether it is really necessary
to stack the cards quite so dramatically against those accused of misconduct.

Susanna Heley is a partner at RadcliffesLeBrasseur @RLB_LAW www.rlb-law.com

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