Protecting the public interest in the practice of law

There are more words devoted to reporting duties in the Solicitors Regulation Authority (SRA)’s Codes of Conduct than any other duty, but their guidance on them is poorly understood and rarely practised. This is a study of how professional reporting can make game-changing improvements in the detection, investigation and sanctioning of unethical behaviour and misconduct, and in preventing miscarriages of justice.

Deterrents work for the legal profession because reputation matters. No solicitor or firm wants to be investigated or to receive sanctions. By creating effective deterrents, we shift the responsibility for compliance to the profession, so the profession polices itself under regulatory control.

The US regulator of the airline industry, the Federal Aviation Administration, has earned an enviable reputation in ensuring public safety by using a scientific method to assess failures and a system of self-reporting for errors and accidents. In his book, Black Box Thinking, Matthew Syed examines why this approach achieves far higher levels of safety and performance than can be seen in the medical and legal professions.

A feature of a progressive society is its ability to learn from mistakes. Two of the biggest barriers to an honest evaluation of failure in any industry are the human traits of cognitive dissonance and confirmation bias. This is where contradicting evidence to a belief or practice is reinterpreted to fit what the subject wants to believe.

As Syed stated: “When we are confronted with evidence that challenges our deeply held beliefs we are more likely to reframe the evidence than we are to alter our beliefs. We simply invent new reasons, new justifications, new explanations. Sometimes we ignore the evidence altogether.”

The portrayal of Post Office Chief Executive Paula Vennells in ITV’s dramatisation of the scandal ‘Mr Bates v the Post Office’, in the scene calling a colleague to ask whether she could assert that remote access to the Horizon system was not possible, is an example of this way of thinking. If Paula Vennells had asked ‘is remote access possible?’ in that phone call, rather than is it not possible, and reported the truth back to Parliament, justice would have prevailed. Acceptance of mistakes and willingness to learn from them saves lives.

During the Post Office Horizon IT Inquiry in early 2024 the SRA Board considered whether the SRA should take action against solicitors more quickly, and it wanted to know what obstacles stood in the way. At first glance the SRA appears to be adopting an inquisitive approach to its public protection duty. That hope evaporated immediately.

The Board then expressed its view that there is a balance to be struck between moving swiftly to protect the public and ensuring investigations are thorough, fair and not based on incomplete evidence. It reflected on the complexities and scale of the cases, and that new evidence was coming through the Inquiry. It recognised it must act urgently to protect the public from an immediate risk from a solicitor, while expressing its belief that, overall, the investigations team expects it will be in the best position to make decisions on action, only after all the evidence has been heard at the Inquiry.

These reasons, justifications and explanations seem to be a random list of excuses that have no obvious basis in any of the rules and procedures which govern the operation of the SRA’s statutory functions.

A regulatory investigation determines whether there is a serious breach of regulatory arrangements, which is not something a public inquiry considers. There were no facts or issues aired through the Inquiry which the SRA could not have obtained itself through its own powers, as would be the case in any other investigation it undertakes.

Former sub-postmaster Lee Castleton OBE received a spontaneous and resounding round of applause when he pleaded with the profession to self-regulate, speaking at the Legal Services Board’s annual Reshaping Legal Services Conference in 2024. At the time the SRA had stated it had no evidence to show that any solicitor involved in the scandal “presents an ongoing risk to the public that needs to be addressed through urgent action”.

One of the key themes for the 2025 Reshaping Legal Services Conference was access to justice. We should remember that access to justice does not mean simply access to lawyers. With public confidence in the ability of the regulator to protect the public at, arguably, an all-time low, the SRA’s priority should be to control lawyers better, so the public has confidence that whichever lawyer they go to will deliver justice.

So, a legitimate question then and now is what was the SRA’s real reason for pausing enforcement action until after the outcome of the Inquiry that trumped its public protection duty. Surely, delayed enforcement is protection denied. Could it be that the regulator itself is deflecting and reframing contradicting evidence to fit what it wants to believe?

The power of reporting

Regulating solicitors to protect the public is dependent on the supply of evidence of misconduct from the profession. That is why there are more words devoted to reporting duties in the Codes of Conduct than any other regulatory obligation. The SRA relies on reports to gather the evidence it needs to investigate. But the rules on reporting are poorly understood. The SRA’s Thematic Review in 2023 found that nearly half of the firms it consulted were not aware of guidance on how to report misconduct, and of those that were, most found it confusing.

All solicitors should be familiar with the basic duty. It is a personal and professional judgement that the facts and matters they are reporting are capable of amounting to a serious breach of the SRA’s regulatory arrangements.

The SRA’s 2022 guidance on Conduct in Disputes provides that ready-made judgement for specific behaviours of making allegations without merit and pursuing litigation for improper purposes. These categories of serious misconduct were present in miscarriages of justice in the Post Office scandal.

The infrastructure to operate a system of self-reporting in the legal profession is already in place. Every law firm’s public guardian is the compliance officer who should understand his or her role clearly and how and when to report misconduct and other breaches of SRA standards and regulations.

Contrast these rules with the codes of conduct for surveyors and architects. The duties to comply with professional obligations and to act honestly are clearly set out, but they are not accompanied by similar requirements on the profession to self-report breaches.

However, a lot depends on the competence of each individual law firm compliance officer. There is no special training, accreditation or qualification beyond practice experience and a clean regulatory record required to hold the role. Do firms have policies or procedures on how to report misconduct to support their compliance officers? Here is the open-goal opportunity to educate and train lawyers better on their reporting obligations.

A good compliant report will specify which principles or codes have been breached and why the breach is considered serious, as well as summarising the facts. This will make the initial SRA internal assessment of the report much easier and quicker. If the SRA continues to act as a passive post-box to receive reports in whatever form they arrive, it is missing a chance to dramatically improve its function, efficiency and effectiveness as a regulator.

For compliant reporting to serve its purpose, the investigation of each reported case by the regulator must be conducted with probity and integrity. In the fictional story in my article on ‘Adjudication’s fragile justice: the roles at play’ published in this journal in October 2024, I looked at three different regulators, the Royal Institution of Chartered Surveyors, the Architects Registration Board and the SRA.

The RICS website has guidance on ‘raising concerns’ and gives an example of failing to comply with professional obligations. In the story the adjudicator was regulated by the RICS and he failed to comply with his professional obligation to act impartially in an adjudication. RICS policy though places conduct in this capacity outside its regulation remit. The ARB is also reluctant to intervene if the conduct of the regulated professional took place during a dispute resolution process.

As no court or judicial tribunal has jurisdiction or power to determine matters of professional misconduct, this leaves the public unprotected and at risk. Applying this reasoning to the Post Office scandal, none of the regulated participants in the court actions could be sanctioned by their regulator for any misconduct that took place during those processes. This is obviously flawed and potentially dangerous logic, but the SRA’s apparent inactivity so far might suggest that it shares a similar sentiment with its regulatory cousins.