Blog
“Regulation beyond the echo chambers”: who is listening?
Jessica Clay
Kingsley Napley’s regulatory team is top ranked in the legal directories for the provision of advice in this field. Led by Iain Miller, one of the country’s leading experts, our outstanding reputation in this area has been built on our having acted in some of the most serious, complex and high profile solicitors’ disciplinary cases over the last 20 years.
Solicitors facing investigation by the SRA or defending themselves before an SDT panel understand how important the obtaining of insightful and timely legal advice can be. Every approach by the SRA has the potential to damage the reputation and prospects of those involved; all communication with the SRA during an investigation should be the subject of careful thought and expert legal advice.
Our team of experienced regulatory lawyers provides advice to solicitors under investigation by the SRA for alleged shortcomings in their professional, as well as their personal, lives. Having previously worked on the other side of such investigations; we know what is likely to work and what won’t.
Many of our solicitor clients require the assistance of specialist legal advisers in the employment and criminal teams; we provide that legal advice seamlessly, ensuring a coherent, consistent and efficient service.
Frequently Asked Questions
What happens in an SRA investigation?
The SRA has wide ranging powers that it uses to investigate solicitors; it may:
- Instruct a Forensic Investigator to conduct an investigation, who will then prepare a report
- Require you to attend a formal recorded interview
- Send you a Notice issued under rule 2.3 of the SRA Regulatory and Disciplinary Procedure Rules. This is likely to set out any allegation(s) you face, the facts in support, the reasons for any recommendation the SRA makes for proposed next steps and the evidence and documentation that the SRA considers to be relevant to the allegation(s). In this Notice, the SRA will invite you to make any written representations in relation to the Notice and will give you a minimum of 14 days to respond. The SRA will take account of your written representations when determining how to proceed with the investigation
The case will ultimately be referred to an Adjudicator or Adjudication Panel, who will decide whether to close the case, issue a penalty or refer the case to the Solicitors Disciplinary Tribunal (SDT) for determination at a hearing.
How should I respond to the SRA?
The early stages of an SRA investigation is the most crucial period when the SRA will form a view as to what has gone wrong and who is responsible. A pro-active and well-judged response by a solicitor or firm can enable the SRA to understand that the matter may be less serious than it thought. The SRA needs to have your side of the story explained in a way that addresses its concerns. If things have gone wrong it can often help to explain what you are doing to put it right and make sure it will never happen again. It is at this stage that experienced advice can make all the difference. We have seen a number of cases over the years where engagement by solicitors at this stage avoids a referral to the SDT.
What is a Regulatory Settlement Agreement (RSA)?
Certain allegations are suitable for conclusion by way of a Regulatory Settlement Agreement (RSA), in lieu of a hearing before the SDT. RSAs are normally only available before the SRA decides to refer the case to the SDT. The solicitor will usually need to accept that there has been a breach of the rules and for that reason, discussions about RSAs are held on a without prejudice basis.
Is an Agreed Outcome available to me?
After the SRA has certified that there is a case to answer based on the Rule 12 Statement and accompanying evidence, it may still be possible to conclude the case without a hearing before the SDT, by way of an Agreed Outcome.
An Agreed Outcome requires the solicitor to make admissions as well as to agree the sanction proposed by the SRA. Agreed Outcomes require the approval of the SDT; their terms must be realistic as the SDT may refuse to agree them. This process can in appropriate cases give solicitor or firms certainty as to outcome and reduce costs.
What powers does the SRA have to request material and information from me when I am under investigation?
Under paragraph 7.4 of the SRA Code of Conduct for Solicitors, RELS and RFLs and paragraph 3.3 of the SRA Code of Conduct for Firms, the SRA Accounts Rules and section 44B of the Solicitors Act 1974 (as amended), the SRA has far reaching powers to compel a solicitor under investigation (and others) to provide relevant information and documents as well as explanations in respect of such information or documents
How can we help?
- Advising in respect of any Forensic Investigation undertaken
- Provision of advice and representation at any recorded interviews
- Responding to the allegations against you
- Assisting with disclosure
- Advising and assisting with alternative disposals to a hearing (RSAs and Agreed Outcomes)
- Gathering evidence and preparing your case
- Presenting your case to the SDT
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Advising and assisting with any appeal necessary