The Solicitors Regulation Authority (SRA) is the regulatory body for solicitors practising in England and Wales. It has wide powers of investigation into allegations of misconduct by law firms and individual solicitors. While the SRA can determine some matters itself (and has power to issue sanctions in relation to them) it refers the most serious matters to the Solicitors Disciplinary Tribunal (SDT), where it acts as prosecutor.
The SRA not only investigates well established allegations of misconduct such as dishonesty, but is increasingly active in relation to personal matters and private lives. Social media, sexual behaviour and discrimination have become areas that the regulator may regard as disciplinary matters relevant to professional practice.
Anyone facing the sort of highly sensitive and potentially damaging issues these investigations involve should seek specialist advice. Dealing with the investigation process is a daunting undertaking, but the sanctions, if found culpable, can be severe.
Most SRA investigations start after the authority receives a complaint. This may be from a client, a third party, an opponent or due to a self-report. However, investigations can also come about through reports from the Legal Ombudsman, from another regulator such as the FCA or the ICO, from the police and even as a result of media coverage.
The SRA will normally contact the individual or firm under investigation concerned to inform them of this, and the basis for it. However, in cases where the SRA suspects that informing the subject may prejudice the investigation, it can start without first notifying them.
The SRA can inform an individual’s employer and firm management of its actions as well other regulators if applicable. It also has powers to contact third parties in order to obtain evidence.
Having decided to investigate, the SRA will appoint a Forensic Investigator with the power to request attendance at interviews, provision of information and documents, and permission to carry out on-site inspections.
For anyone caught up in misconduct allegations, the response to these requests can be critical. It is often a matter of balancing the requirement to cooperate with the need to ensure that the SRA is acting reasonably and proportionately.
After completing their enquiries, the Forensic Investigator will prepare a Forensic Investigation Report, setting out any alleged breaches of the codes, standards and regulations. If issues of professional misconduct are raised in the report, the SRA will send it to the solicitor or firm in a document sometimes referred to as an ‘Explanation with Warnings’ (EWW) letter.
The way in which the solicitor or firm replies to the EWW letter can make the difference between the case being closed or enforcement action being taken. An understanding of how to deal with the issues in a manner which will satisfy the SRA’s concerns is clearly vital. In certain instances the SRA can be persuaded to issue a warning, reprimand or rebuke or a small fine rather than take matters further.
Even if the SRA decides to issue proceedings at the Solicitors’ Disciplinary Tribunal, there are still opportunities to stop the case going to a public hearing. Regulatory Settlement Agreements (RSAs) can be negotiated by which the solicitor will accept wrongdoing and agree a penalty thus avoiding the bad publicity, stress and expense of an appearance at the SDT.
Hickman & Rose specialise in acting for lawyers (both solicitors and barristers). This gives us a deep understanding of how best to robustly advance clients’ interests whilst not alienating the regulator.
A significant part of the regulatory team’s work involves providing professional disciplinary advice and representation to individuals whom the firm also represents in relation to criminal allegations. By offering both services together, the firm is able to provide clients with complete legal solution to the issues which are most likely to seriously impact on their liberty and livelihood.
At the time of writing, Hickman & Rose are acting in the SRA’s biggest ever intervention of a law firm. In recent years our lawyers have achieved significant success for clients including:
Hickman & Rose’s regulation department is led by partner Andrew Katzen, who has spent many years advising and representing solicitors and law firms He is a regular speaker and commentator on regulation of the legal profession and a committee member of the Association of Regulatory and Disciplinary Lawyers (ARDL). Regulatory law and professional discipline specialist Claire Wallace is a partner in the department.