The decade since the enactment of the Legal Services Act 2007 (the "LSA") has seen significant regulatory reform in the legal sector, including the Solicitors Regulation Authority ("SRA")’s move from a prescriptive, rules-based Code of Conduct to a more flexible, outcomes-focused Code in 2011. Reform continues apace, with a number of consultations having taken place in the last year or so, on issues ranging from education, innovation and the Accounts Rules to the shape and content of the SRA Handbook.
The "Question of Trust" campaign
One aspect of this has been the SRA's "Question of Trust" campaign, which ran from September 2015 to January 2016. The stated aims of the campaign included to seek views on the factors which the SRA should take into account when considering the appropriate response to breaches of regulatory standards, and ultimately to improve transparency and predictability in the outcomes of the SRA's enforcement processes.
The campaign canvassed the views of 5,400 people (both solicitors and non-solicitors), many of whom responded to an online survey which asked them to rank the seriousness of differing levels of misconduct, by reference to various scenarios. The survey sat alongside a more formal consultation which sought views on a draft framework outlining the types of sanction which might result from various different breaches of the core professional principles. The consultation document also asked questions about the significance of considerations such as a solicitor's state of mind (for example, intent as against recklessness or inadvertence), whether harm was caused, and the vulnerability of the client, as well as whether matters relevant to an individual’s behaviour in private should be taken into account when assessing issues such as want of integrity or professional judgement.
The full findings of the consultation were published on 30 March 2017 and the SRA says it will use these findings to "refine our approach to how we judge the seriousness of offences and what action we may take". In particular, the SRA states that these findings will inform the development of a revised enforcement policy, a consultation on which is expected to be published later this year.
Some key points
Salient points that emerge from the responses to the campaign include:
The public's perception of the importance of information security
The survey responses indicated that solicitors take information security issues less seriously than members of the public, with non-solicitors marking questions relating to client confidentiality as being more serious than solicitors did. Respondents were asked questions relating to data security systems which allowed hackers access to private information and breaches of client confidentiality involving client files being open to public view, perhaps on a laptop on a train or in the reception area at an office.
The public's perception of the importance of "competence problems"
The responses also suggested that solicitors take "competence problems" less seriously than the public. As with information security issues, these instances were marked as more serious by non-solicitors than they were by solicitors, and included examples such as a lack of knowledge of relevant practice areas by solicitors and a failure to meet deadlines.
The most serious scenarios
The scenarios which tended to be categorised by respondents as involving the "most serious" type of misconduct were perhaps unsurprising and concerned misuse of client money, self-dealing and presenting misleading or false evidence. The SRA concluded that the results were broadly in line with their current thinking as to the types of conduct that should be viewed most seriously. Across the results, significant factors in increasing the perception of seriousness were found to include the degree of intent by the solicitor and the harm caused.
Situations involving breaches by less experienced solicitors were generally perceived, on average, to be less serious. However the SRA notes that they only asked a few questions involving junior solicitors and did not ask comparable questions where the only difference was the seniority of the solicitor, so this data is unlikely to be definitive. It is, however, suggested by both solicitors and non-solicitors that the seniority of a solicitor is a relevant factor in the assessment of the response to a breach.
Conduct outside legal practice
Scenarios involving behaviour within a solicitor's private life were also considered, but the SRA notes that there was no consensus on how seriously they should take these matters. That said, instances of behaviour which were more widely publicised (such as using racist language in an online blog) were classed as more serious than criminal offences such as drink driving and possession of illegal drugs. Similarly, actions which were related to a solicitor's professional work (such as the fraudulent charging of expenses to a charity to which they volunteered legal advice) were classed as more serious than instances which might be more closely related to their private life, such as fare dodging on public transport. Clearly, there will be situations where one’s conduct outside the confines of professional work might be relevant to an assessment of judgement and integrity.
The results of the campaign are said by the SRA to illustrate that they are "generally focusing on the issues that really matter to the public and the profession". As the SRA states that the results are "broadly in line with the current matters we would take more and less seriously", it remains to be seen how much impact this campaign will have upon the enforcement policy to be consulted upon later this year.
The public perception of the importance of client confidentiality is significant and cyber security and other physical data breaches are areas of increasing focus in all professions, including the legal sector. It is likely that the SRA, whose recent work on information security includes the publication in December 2016 of its report "IT Security: Keeping information and money safe", will continue to develop its focus on this area. The evident significance for the public of information security issues underlines the importance for firms of ensuring that appropriate policies and procedures are in place to protect all types of confidential data.
Will the suggestion that breaches by junior solicitors are perceived as less serious have any impact on the regulator's approach to enforcement? Junior solicitors do from time to time get referred to the Solicitors Disciplinary Tribunal, and successful prosecutions have resulted, and it would be surprising if no account were taken of the campaign findings in the SRA’s future approach to decisions to refer junior solicitors to the SDT. Similarly, as it is suggested that minor criminal offences which are almost entirely private matters are considered to be less serious, this might translate into a more flexible regulatory approach to the scrutiny of private behaviour which does not clearly cross appropriate professional boundaries.