Perceptions of misconduct

To welcome 2016, the Solicitors Regulation Authority (SRA) has announced a new programme of research as part of its continuing work on regulatory reform. Perhaps unsurprisingly, personal injury, crime, and vulnerable clients feature high on the agenda. The SRA will be looking at the impact of recent regulatory reforms and is expected to consult later this year on a new code of conduct and new accounts rules.

The process is being driven in part by the political imperative of deregulation and the need to re-level the playing field between traditional firms and alternative business structures (ABSs) since, as matters stand, everything that traditional firms do is regulated but the same is not the case for ABSs, where their business may include out-of-scope work. 

Perhaps the most ?interesting question which the SRA intends to look at is whether enforcement action is a credible deterrent. This follows on from the SRA’s ‘A question of trust’ exercise, which is intended to help the regulator gauge how seriously certain types of misconduct are perceived and what issues require a regulatory response. 

The SRA has been ?canvassing views for some time and announced in December that it had received over 4,000 responses. Surveys have been carried out online and at various events around the country, and the ongoing consultation closes at the end of January.

Types of dishonesty

I confess that I was not terribly enlightened by the SRA’s survey. For many of the questions, there did not seem to be enough information to make an informed decision. 

What, at first blush, may have appeared quite significant could potentially have been explained and resolved by the addition of further information. Other issues which appeared fairly minor could have been extremely serious, depending on further information which was not there. 

A surprisingly large number of questions seemed to suggest solicitors were deliberately misleading their clients, colleagues, or the court.

It seems that the SRA has ?tried to come up with questions which cover a range of potential types of misconduct and whether or not that conduct was intentional. To me, though, the references to deliberate or knowing conduct impact rather dramatically on the underlying misconduct, as one cannot escape the inference that the conduct was done dishonestly. 

One might assume that what is really being asked is whether and to what extent society draws distinctions between types of dishonesty. What the survey does not tell you is which elements of the alleged misconduct affect the way in which it is perceived. Many ?of the questions involved several clearly identifiable issues which were treated globally. 

Problem scenario

A question which particularly stood out involved a scenario where a fee earner brought work into her firm. A friend was acting for the opposing party on one of the cases and the fee earner had previously discussed the case with her. Despite knowing that she would be in breach of SRA rules if she continued to act (rather than passing the matter on to another fee earner), she did continue for the benefit of her career. 

This question is troubling on a number of levels, even leaving aside that it is arguably based on a misinterpretation of the current position. It presents a multitude of issues, and it is simply not possible to tell which elements would be regarded by clients as serious. 

Perhaps equally fundamentally, it presupposes that the existing rules would continue to apply and thus overlays on the whole scenario the issue of knowingly acting in breach of the rules for personal gain (i.e. the prospect of career advancement). If the purpose of the exercise is to identify what the public and the profession would treat as misconduct, how does it assist to muddy the waters in this way? 

It seems to me that one of the problems with insisting on an evidence-based approach to regulation is that the evidence on which a system is based must be clear and reliable. That is often not possible in a field such as legal services, where there is a wide range of opinions and interpretations across many different subjects. 

While credit should be given to the SRA for attempting a complex and nuanced approach to improving its understanding, the methodology does leave something to be desired.

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