Under caution: how to handle a disciplinary investigation

I was rather baffled sitting in the Solicitors Disciplinary Tribunal (SDT) recently when the Solicitors Regulation Authority’s (SRA) advocate put to a respondent that he was aware of his rights – in the context of an interview with an SRA forensic investigator. It left me wondering what on earth the SRA was talking about. Interviews with SRA investigators are recorded and frequently used as evidence but they are not under caution and, in my experience of attending such interviews, a solicitor is never informed of any ‘rights’. Traditionally, in the criminal sphere, your rights might be taken to include the modified right to remain silent where “you do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court”. The SRA can’t be suggesting that there is a right to remain silent – modified or not – in interviews conducted as part of its investigations; as solicitors you have an obligation to co-operate with the SRA. I can’t see the SRA suggesting that you could attend an interview, decline to comment and still be safe from an allegation that you have failed to co-operate with your regulator. You may also think that an interviewee would have a right to have a solicitor present during the interview and to take breaks to receive legal advice. While the SRA makes no objection to an interviewee being accompanied by a solicitor, there is no formal right to take legal advice in connection with the SRA interview. If an interviewee were to say they wanted to consult a lawyer mid interview, no doubt the SRA would be sympathetic but there is no enforceable right to terminate the interview at that stage to enable legal advice to be taken before further questioning occurs.

Add to all of this that there is no automatic legal expenses cover for SRA investigations or ensuing disciplinary proceedings and one may be forgiven for thinking that the ‘rights’ of a solicitor being interviewed by the SRA are rather illusory. Certainly, an interviewed solicitor may be forgiven for thinking that they have no real rights in connection with an SRA interview. This approach is generally in keeping with the assumption underlying all of our regulatory processes; that solicitors will be capable of speaking for themselves cogently and coherently, will be able to explain their actions and, importantly, will not be influenced into making admissions which are unjustified. Unfortunately, this is often not the case. Many solicitors don’t appreciate the importance of a recorded interview, don’t ask for an agenda in advance and don’t challenge the assumptions of the SRA investigator. There are a number of reasons for this:

— Recorded interviews tend to be the culmination of an onsite SRA investigation. The interviewee has probably interacted with the SRA investigator perfectly pleasantly over days, weeks or even months. Often an element of trust has been created which, while undoubtedly necessary for the SRA investigator to perform their job effectively, can lead to a real feeling of betrayal during a contentious interview or later when an adverse report is received.