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Closed Consultation

Modernisation of regulatory decisions

30 November 2007

This consultation is now closed.

A consultation—on proposals to give greater publicity to regulatory decisions and to conclude regulatory investigations by agreement—ended on 4 May 2007.

The following information is likely to be of interest to those who responded to the consultation:

Background information is available below.

 

 

Proposals for the modernisation of regulatory decisions

Introduction

1.

Each year we make decisions about the conduct of solicitors and the way in which they run their practices. Some of these decisions are made public, but others are not.

2.

We believe that it is in the public interest to publish many of our regulatory decisions, particularly those which arise from a solicitor's personal conduct. Publication

  • helps consumers to make choices about legal services
  • enhances the deterrent effect of certain kinds of decision
  • enables the public, the users of legal services, and the profession to see how the Solicitors Regulation Authority (SRA) is regulating solicitors
3.

We also believe that we should be able to conclude an investigation by agreement between us, as the regulator, and the solicitor rather than always requiring a formal adjudication, as is the position at present.

4.

We are therefore seeking views on the following key points:

  • whether regulatory decisions of the SRA should be published
  • whether the SRA should be able to conclude its investigations by agreement

Publishing decisions

5.

We regulate solicitors. We do this in many cases by making formal findings that they have breached their professional duties and by reprimanding them. We may also take steps to control the way in which a solicitor practises – for example, by requiring further training or even deciding to close down a law firm (known as an intervention). Our aim is to protect the public.

6.

We believe that information about these decisions – in particular, the reasons for any findings of misconduct or conditions imposed on solicitors' practising arrangements – is important in helping people to decide whether to use a particular solicitor or firm. It may also encourage the public, and other professionals, to identify and report to us inappropriate behaviour through their greater awareness of our work. And it would help to make us properly accountable for our work.

7.

We believe that, as a general rule, information about our decisions should in future be made public. We propose to publish several types of decisions:

  • findings of misconduct resulting in a reprimand of the solicitor
  • practising certificate conditions
  • decisions to prosecute at the Solicitors Disciplinary Tribunal
  • details of allegations, once the Solicitors Disciplinary Tribunal has agreed there is a case to consider
  • agreements to conclude a regulatory investigation
  • decisions to intervene in legal practices and the legal basis for the decision
8.

We will not be able to or wish to publish information that is confidential to clients or is of a highly personal nature, such as someone's medical history, and we would also not publish where publication would

  • prejudice court proceedings
  • disclose personal circumstances other than the solicitor's professional performance
  • damage the underlying purpose of an agreement between the SRA and a solicitor
  • be unlawful
9.

We are aware that the publication of these decisions may have an impact upon solicitors or their firms, and that the simple recording of a decision may not be sufficient for the consumer to know the nature of the misconduct or to understand its relevance. The record therefore will need to provide enough information to put the decision in context, while maintaining the confidentiality of the client or other people. Published information will usually be limited to a short statement of the decision with brief factual details such as the basis of a reprimand or the reasons for imposition of a practising certificate condition. The solicitor's name and practising details (at the time of the matters giving rise to the decision and at the time of publication) will usually be provided.

10.

As the regulator, we keep details of all decisions recorded against a solicitor without any time limits and will continue to do so. While we believe that the public has a right to know a solicitor's regulatory history, we also believe that it may be misleading to continue to keep on the public record all decisions – in particular, where the decisions are historic and where there has been no other intervening misconduct. We are seeking your views on this.

11.

If, as a regulator, we have a concern that a solicitor or firm presents a continuing serious risk to the public, then we will refer the solicitor to the Solicitors Disciplinary Tribunal and consider taking action to prevent the firm from continuing to practise. In cases where there has been a finding of misconduct, we will therefore be satisfied that the action taken is sufficient to deal with the risk identified.

12.

Decisions will normally be published promptly, but we will retain the discretion to publish them or parts of them at a later time. This may be necessary, for example, to ensure that only allegations formally made to the Solicitors Disciplinary Tribunal are published.

Agreements

13.

Most of our investigations are, at present, concluded by means of a formal adjudication. This can on occasions limit the remedies we impose. We now propose that, like many other regulators, we should also have the option to resolve an investigation by agreement with the solicitor. Any decision to conclude a case in this way will nevertheless be a regulatory decision and recorded as such.

14.

It is intended that there will be two types of agreements: a "settlement agreement" to conclude a complete investigation, and an "issue agreement" to resolve one aspect of an investigation.

15.

The option to settle an investigation by agreement will provide us with greater flexibility, as we will be able to propose and agree terms which are focused on the facts of the individual case. For example, we may propose that, in addition to a solicitor accepting a reprimand, they should also take corrective action such as repaying to clients money that we believe should not have been taken as costs. The solicitor may be more inclined to agree, including accepting the reprimand, because they can be certain of the outcome of the investigation rather than awaiting the results of an expensive and uncertain disciplinary case. This process may therefore offer increased public protection as well as being quicker than a formal adjudication. It enable us as regulator to deliver an appropriate, proportionate, timely and cost-effective response.

16.

We acknowledge that it will be important to ensure that agreements are used properly. They should not be used, or be perceived to be used, by solicitors to avoid necessary disciplinary action or adverse publicity or used by the regulator simply to reduce costs. We will do this by ensuring that it is us as the regulator who will decide when an agreement is appropriate, and its terms, including whether the terms are made public. The solicitor will be able to agree to those terms to conclude the investigation. Where a solicitor does not comply with the terms of an agreement, we will be entitled to rescind it and to continue with the regulatory investigation.

Questionnaire

(The consultation questions are included below for reference purposes only. The deadline for submission of responses was 4 May 2007.)

Greater publicity for regulatory decisions

We believe that it is in the public interest for the regulatory history of solicitors to be made accessible to others. We therefore propose to publish a number of our regulatory decisions. We believe that this step will increase transparency, public protection and confidence in the legal profession and regulatory system.

Question 1

Do you agree in principle that regulatory decisions should be made publicly available?

  • Yes
  • No

Please enter any comments.

Question 2

We believe the public must be able to access this information easily—for example, through the SRA website (www.sra.org.uk) or direct from the SRA upon request.

If we decide to make regulatory decisions publicly available, where do you believe they should be published?
You may select more than one option.

  • SRA website (www.sra.org.uk)
  • Law Gazette
  • Other

(Respondents who answered "Other" to Question 2 were asked a follow-up question. All other respondents went directly to Question 3.)

Please explain where you consider the information should be made available.

Question 3

If we decide to make at least some types of regulatory decisions publicly available, which types of decisions do you believe these should be?

Select from the list below the types of regulatory decisions you believe should be made publicly available.
You may select more than one option.

  • Reprimand and/or severe reprimand
  • Referral to the Solicitors Disciplinary Tribunal
  • The reason for an intervention in a solicitor's practice
  • The conditions on a solicitor's practising certificate

Please enter any comments.

Question 4

We take a risk-based approach to regulation. This includes using all available information about a solicitor and or the firm to decide on the proportionate approach and outcome. There is no time limit at present on how long we keep our record of regulatory sanctions.

However, where decisions are made publicly available, it may not be right to publish all decisions permanently—in particular, if there have been no further regulatory decisions made against the individual or the firm over a period of time. We, as regulator, would continue to maintain in full our own records without any time limits.

If we decide to make regulatory decisions publicly available, these decisions should be…
Please select only one option.

  • kept permanently available
  • removed after a period of time
  • other

Please enter any comments, including your views on what would be an appropriate period of time for publicly recorded decisions to be kept available.

Settlement of regulatory investigations by agreements

At present we investigate allegations of misconduct and regulatory breaches, following which we decide

  • that the allegation is not proven and no further action is required, or
  • that there is evidence of misconduct and we need to reprimand the solicitor, impose conditions or refer the solicitor to the Solicitors Disciplinary Tribunal.

Another option would be to conclude an investigation on terms which may include a finding of misconduct or the use of other powers. The advantages of this include

  • certainty of outcome for both parties
  • greater flexibility to agree terms which could be outside of the scope of the our current powers
  • speedier process and conclusion

Such agreements would continue to be regulatory decisions and not commercial settlements.

Question 5

Do you agree that the Solicitors Regulation Authority should be able to enter into agreements with solicitors to settle regulatory investigations?

  • Yes
  • No

(Respondents who answered "No" to Question 5 were asked a follow-up question. All other respondents went directly to Question 6.)

Please explain why you believe that the Solicitors Regulation Authority should not be able to enter into agreements with solicitors to settle regulatory investigations.

Question 6

Not all breaches will be suitable to be dealt with by agreement, and the Solicitors Regulation Authority will need to decide in each case whether to make an agreement. Assuming we decide to use agreements, please list below

  • any specific types of misconduct that you consider would not be suitable to be settled by agreement, or
  • any other factors that should be taken into account when deciding whether to reach an agreed outcome.

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