The SRA needs to clarify its decision-making process

Commenting on the ‘Question of Trust’ campaign on the Solicitors Regulation Authority (SRA) website, the CEO, Paul Philip, stated: ‘I believe that clear, consistent, and transparent decision making is fundamental to good regulation and we are reviewing our end-to-end procedures accordingly. Our new reference framework will help staff and the profession alike.’

The Law Society ‘agrees on the importance of a regulatory framework which enables the profession to be clear about the consequences of misconduct and the public to understand what will happen should they complain about it’, but expressed concern that the SRA was attempting ‘to categorise all misconduct at the expense of consideration of individual circumstances’. 

Bringing about a fair and transparent decision-making process is about more than just saying action A will result in consequence X. All cases will turn on their merits, and it is only fair that appropriate mitigating circumstances are taken into consideration. The SRA needs to do more than just focus on the end result: it needs to be able to explain how it reached a decision in any given case. Vague references to decision-making criteria or policies on the website enlighten nobody.

It is of concern that there often appears to be a significant disconnect between actions and consequences, and nowhere is this more apparent than if you take a look at the ‘recent decisions’ section of the SRA website. 

Redacted decision

Towards the end of last year, a decision appeared on the SRA website in connection with a solicitor who had received a rebuke and a £2,000 fine relating to breaches of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the SRA Code of Conduct 2011. The initial decision ran to four pages and included a section on the ‘reasons/basis’ for the decision. This included details of the solicitor’s and the firm’s relationship with a third party who had introduced personal injury work to the firm.

Colleagues and I discussed the decision, which seemed to be a low-level sanction for what appeared to be serious misconduct. This version did include details of mitigating factors. 

It was something of a surprise when a few days after the original four-page decision appeared on the SRA website, the decision was severely redacted to the point that it now runs to less than one page, with the entire reasons/basis section removed. 

In addition to the concern that the second redacted version of the decision would give very little indication to anyone reading it as to why the level of penalty was set at a rebuke and a £2,000 fine, there is the fact that the identity of the third party named in the first decision is no longer a matter of public record. 

Decision-making criteria

In a much more recent decision, a solicitor received a practising certificate free from conditions less than nine months after the end of his 18-month suspension period. The order was made by the Solicitors Disciplinary Tribunal (SDT) following convictions in relation to conspiracy to defraud, with the period of suspension commencing on 4 December 2013 and ending on 4 June 2015. 

In its findings, the tribunal set out in full why it considered that there were exceptional circumstances in this case that meant it did not consider it appropriate to strike off the solicitor, despite his criminal convictions. 

I am not drawing any conclusion as to whether or not in this particular case it was appropriate to grant that solicitor a practising certificate free from conditions less than 12 months after the expiration of his 18-month suspension. My point is that it might be helpful if the SRA could provide more information to indicate the reasons behind its decisions, particularly in this case, which, on the face of it, does appear surprising. 

Nowhere do the SRA’s decision-making criteria seem more opaque than when dealing with disciplinary matters. ?We have acted for a number of solicitors in connection with disciplinary proceedings and when they inevitably ask what the SRA will do, it is very tempting to just shrug your shoulders or flip a coin. 

The truth is that it is very difficult to gauge what the SRA’s response will be, in particular whether or not it will seek to refer a matter to the SDT. It appears likely that this might be as a result of the trend over the last few years to make these decisions via an authorised officer.

Martina Hogg is a lead compliance consultant with the Weightmans Compliance team @compl_i www.weightmans.com