SRA Guidance – internal investigations and guidance for in-house advisers

On 18 November 2024, the SRA published its updated and now finalised guidance on internal investigations. 
 

Separately, the SRA also issued a suite of dedicated guidance for the 34,500 plus in-house solicitors and their employers. This collection of guidance was initially published in March 2024 in draft form and, since then, the SRA has consulted with its virtual in-house solicitor reference group, comprising in-house professionals from the private, public and third sectors at various levels of seniority. The SRA has confirmed that it also engaged the wider in-house community through surveys, roundtable events, direct discussions and has taken on board feedback from more than 50 formal responses to the draft documents.

Internal investigations

The purpose of the SRA’s guidance on internal investigations is to help solicitors understand and manage regulatory risks and issues when conducting internal investigations.  It is not intended to assist in complying with employment law when carrying out an investigation.

The guidance is directed towards solicitors and law firms when they are involved in leading or conducting an internal investigation.  That is, a solicitor working in-house for an organisation that is conducting an investigation, or a law firm conducting an investigation on its own behalf. It may also be informative for solicitors or firms conducting investigations on behalf of another (a client, for example).

The guidance covers:

• The relevant regulatory framework in the context of an internal investigation;
• What an internal investigation is;
• The terms of reference in internal investigations;
• Guidance on acting with independence;
• Appointing an external investigator;
• Managing the investigation process (supporting those involved in the process, interviewing, managing and recording evidence, and reporting); and
• Circumstances in which the SRA should be notified.

In terms of the changes made to the guidance since the original version was issued in March 2024, the SRA states that those are based on detailed feedback received and include the following: 

• more detail has been added to highlight the SRA’s concerns about the risks where an investigation or investigation report is poorly or improperly conducted/prepared;
   
• in relation to process, the guidance has been expanded to highlight the relevant considerations to have in mind, the importance of clear communication with the parties to an investigation and the key role written terms of reference can play. The areas covered include information on establishing facts, managing evidence, and maintaining independence during investigations. This includes advice on handling confidential information and ensuring fair treatment of all parties involved.  Steps for gathering evidence, conducting interviews and documenting findings to ensure a thorough investigative process are also included;
   
• on supporting individuals involved in investigations, the guidance highlights the importance of providing appropriate support to all parties involved, recognising the potential emotional and psychological impacts.  There is also reference to the importance of fair treatment, protecting whistleblowers from victimisation and ensuring that interviewees have access to necessary support services; and
   
• the “further help” section of the guidance has been expanded to include a signpost to ACAS, the whistleblowing charity, Protect, and the SRA’s Professional Ethics helpline.

Guidance for in-house solicitors and their employers

The updated wider suite of guidance is as follows:

• Identifying your client when working in-house (this guidance should be read in conjunction with this case study)
• Legal professional privilege when working in-house
• Reporting concerns about wrongdoing when working in-house (this guidance should be read in conjunction with these case studies)
• Understanding in-house solicitor’s professional obligations as an employer
• Key points for governing boards, chief executives and senior officers in organisations employing in-house solicitors

The guidance regarding legal professional privilege and on reporting concerns about wrongdoing when working in-house are particularly helpful as these help to unpick fundamental and knotty issues in the context of internal investigations and in relation to whistleblowing.

A point worth flagging as a reminder here is the limitation of whistleblowing protection in circumstances where an in-house solicitor wishes to raise concerns about wrongdoing by reference to information they receive which is subject to legal advice privilege. The guidance on legal professional privilege is completely new following the other drafts produced earlier this year. This must be seen as a welcome addition.

We heard many comments about the draft guidance being too generic and not providing enough practical examples for those working in-house to find it all that useful to help them work through the unique issues and challenges they encounter on a day-to-day basis. The finalised suite of guidance now goes further in supporting solicitors to overcome these challenges and also highlights to employers the value that in-house solicitors can bring to organisations in terms of promoting ethical behaviours and managing risk.

Further information

If you have any questions regarding this blog, please contact Jessica Clay in our Regulatory team or Nikola Southern in our Employment team. 

About the authors

Jessica Clay is a partner in the legal services regulatory team. Jessica has a substantial practice advising law firms, including magic circle, global and boutique law firms, as well as partners and others working within firms and lawyers working in-house. Jessica also advises alternative legal services providers. She advises on a range of SRA-related matters, including authorisation and changes to business structures, reporting obligations, compliance and ethical standards, with a focus on matters relating to counter-inclusive behaviours and how these impact law firm culture.

Nikola Southern combines technical rigour with commercial nous and a pragmatic, strategic approach to place clients in the best possible position to avoid litigation, initiate claims or, for employers, provide a strong defence to any claims and reach favourable resolutions. As a testament to her expertise, Niki is also recognised by Chambers and Partners, UK 2024 and in their 2024 Global Guide.