Solicitors Regulation Authority and solicitors disciplinary proceedings
'Unmatchable service and value for clients’ 'dedicated and relentless' - Legal 500, 2021 (Professional Discipline)
If you have received correspondence from the Solicitors Regulation Authority (SRA), our specialist team can provide expert legal advice and representation.
The boundaries for the regulation of solicitors have been extended quite dramatically in recent years. The SRA is now primed to investigate complaints involving alleged sexual harassment in (and outside) the workplace which extend into the private life of professionals as well as its more traditional jurisdiction. This means that issues of privacy and the impact of the European Convention of Human Rights on SRA investigations and disciplinary proceedings in the Solicitors Disciplinary Tribunal are now of crucial importance.
Who are the Solicitors Regulation Authority and what do they do?
The SRA is the body responsible for regulating solicitors in England and Wales. It is an approved regulator for the purposes of Legal Services Act 2007 and responsible to the Legal Services Board. There are other approved regulators for the legal profession such as the Bar Standards Board (BSB) for barristers and Chartered Institute of Legal Executives (CILEx).
The Regulatory Framework
The SRA regulates solicitors by imposing standards and regulations. These were most recently updated on 25 November 2019. The standards and regulations include seven Principles and separate Codes of Conduct for solicitors and solicitors’ firms. There are also other rules and regulations including the Solicitors Accounts Rules. The SRA is responsible for enforcing those regulations.
When will the SRA act?
If the SRA receives a complaint about a firm or a solicitor it will look to establish whether there has been a breach of the Principles or its standards and regulations. If the matter is deemed to be ‘serious’ then it is likely to open an investigation. Not every referral will lead to an investigation. What is ‘serious’ is determined by a number of factors which include the nature of the allegation, harm (including impact on the ‘victim’) and seniority.
The ambit of the obligation to ‘self-report’ has been extended with respect to issues that arose on or after 25 November 2019. As before this date, you must inform the SRA if you have been charged, cautioned or convicted of any criminal offence. You must also report insolvency or serious financial difficulty. However, the obligation to report any serious breaches of the Principles or other regulations has now been extended to include any matter which you reasonably believe the SRA may wish to investigate. This is an important extension.
Will you know if the SRA has opened an investigation?
If the SRA has received a complaint about you then it is likely to write to you to notify you that it has received a complaint which it is investigating. It will inform you that you are likely to hear again in due course. Sometimes it can take months for subsequent correspondence to arrive. If the matter is more complicated, or the SRA requires further information, then it may formally request the disclosure of material or information by the service of a Notice under section 44B Solicitors Act 1974 (see our blog here).
If the SRA has concerns over the protection of client interests or money, and if the statutory grounds under Schedule 1 Solicitors Act 1974 are engaged, it may intervene into a solicitors practice. Grounds include where the SRA suspect dishonesty, bankruptcy, death, criminal conviction or incapacity. It may also intervene where there have been breaches of the Solicitors Accounts Rules. The SRA has wide-ranging powers on intervention which are detailed in Schedule 1 above.
Explanation With Warnings (EWW) Letter
If the SRA has opened an investigation then once it has formulated allegations, it will send a letter to a solicitor, or to a firm, setting out those allegations and the factual matrix upon which they are based and request a response. This is called an EWW letter. You should be given an appropriate amount of time to respond to the letter depending on the complexity of the allegations being made, and always at least 14 days. It is important that you engage with this correspondence (and ideally take specialist legal advice beforehand). If you are unbale to respond on time then you or your representatives should let the SRA know and ask for an extension within the time limit set. There may be subsequent correspondence before a decision is made.
Following the conclusion of its investigation, the SRA will make a decision about what action, if any, to take. It may take no action having been satisfied with the explanations it has received. Alternatively, it has a wide range of powers:
- A ‘casework decision’ (where there is no formal adjudication)
- A letter of advice
- A finding and warning
- A rebuke
- A financial penalty (presently up to £2,000)
- A referral to the Solicitors Disciplinary Tribunal [SDT]
It is possible to reach agreement with the SRA by making admissions and agreeing a penalty. Such agreements are known as ‘Regulatory Settlement Agreements’ and will usually be entered into as an alternative to referral to the SDT.
A referral to the Solicitors Disciplinary Tribunal should only be made by the SRA if it is satisfied that both an evidential and public interest test is met. Only the most serious (or complex) cases, where the SRA considers that its internal powers are insufficient, are referred to the SDT.
What is the Solicitors Disciplinary Tribunal (SDT)?
The Solicitors Disciplinary Tribunal is an independent Tribunal created by Solicitors Act 1974. It hears cases referred to it predominantly by the SRA. It is independent of the SRA. It conducts itself according to its own procedural rules and Practice Directions. There are new rules governing its procedure which also came into force on 25 November 2019 (Solicitors (Disciplinary Proceedings) Rules 2019).
What happens if my case is referred to the SDT?
If the SRA decides to refer a case to the SDT, it will prepare ‘a Rule 12 statement’ detailing the allegations and the factual basis upon which they are made. The Rule 12 statement will be accompanied by an exhibit which attaches the evidence upon which the SRA relies. A Panel Member of the SDT will then decide whether there is a case to answer. If the SDT decides there is a case to answer, it will serve the Rule 12 statement and supporting evidence on the Respondent Solicitor or Firm with standard directions.
Those directions will include a requirement by the Respondent to file and serve an Answer to the allegations and it is likely to fix a case management hearing. If the matter is contested it will be set down for a final hearing and the Respondent will file and serve the evidence upon which he/she wishes to rely in response. There is an obligation on the SRA to make disclosure of material that undermines its case although this issue is complicated.
The matter proceeds to hearing before a Panel of three members. Each Panel will usually consist of two professional solicitor members and one Lay member. The burden is on the SRA to prove its case to the civil standard ‘on a balance of probabilities’ (this was recently lowered from the criminal burden). After the hearing, the Panel will give judgment and if it finds any matter proven proceed to the imposition of a penalty and costs. The range of penalties available to the SDT are to order that a solicitor:
- Be struck off the Roll;
- Be suspended from practice indefinitely or for a limited period;
- Be subject of restrictions on their practice;
- Pay an unlimited fine;
- Pay the costs of the SRA prosecution.
Publication and Privacy
If the SRA makes a decision, including a decision to enter into a Regulatory Settlement Agreement, or to refer a case to the SDT, then it will usually publish this decision on its website. It has a policy regarding publication (available on its website) and it will write to you in advance confirming the text it intends to publish and invite submissions.
SDT proceedings will be held in public unless the Respondent is able to persuade it to depart from the overriding principle of ‘open justice’.
Why should I instruct Brett Wilson LLP?
We have extensive experience in handling SRA investigations from the outset where focus on the relevant issues and quality written submissions are of paramount importance. We also have a range of expertise at the firm to deal with related matters such as criminal prosecution and privacy applications. We will undertake a detailed analysis of the issues in the case at the outset and give you straightforward and honest advice on strategy.
We have long-standing working relationships with the best regulatory KCs and junior barristers, whom we can instruct to advise in more complex cases and to represent you at the SDT if the need arises.
We are recognised in the prestigious Legal 500 directory for our work in the field of professional discipline. The department is described in the Legal 500 2021 directory as providing ‘unmatchable service and value for clients’ and ‘dedicated and relentless’.
How do I instruct Brett Wilson LLP?
You should contact one of our team to discuss your case and arrange a preliminary consultation. We will provide with written details of our fee structure. The first step is to attend a preliminary consultation. At the consultation we will advise you on the investigation, talk through the relevant practical and legal issues, and set out your options. We will review relevant documentation ahead of the consultation. The consultation will help you understand your position and allow you to make an informed decision about what action to take.
Consultations take place in our London offices or by Zoom/Teams/telephone. We can also travel to you.
Details of the cost of a consultation will be provided following your enquiry.
Contact us to request a consultation
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