SRA: Published decisions to be clearer
Details of many disciplinary and other regulatory actions taken by the Solicitors Regulation Authority (SRA) will be published for longer than they are now, the regulator has decided.
It is also pressing ahead with increasing the level of fines for wealthy solicitors by a huge margin.
The decisions of the SRA board on both its publication policy and how it will implement aspects of its new fining policy were published today.
The majority of SRA decisions are kept on its website for three years, although those with restrictions lasting longer are kept in the public domain for that period – or indefinitely for strike-offs.
The SRA recommended increasing them in some cases to combat misinformation online and, following a consultation to which it received 31 responses, will be implementing the changes largely as proposed, even though research among the public found support for a more punitive policy.
More than half of those responding to social media polling felt that even relatively minor sanctions should be published indefinitely, as did some individual solicitors responding to the consultation.
“In our public focus groups, some felt that given the level of trust put in solicitors, decisions should be published permanently,” the SRA said.
There were “mixed views” among consultees about whether the length of publication should be changed but there was broad support for linking the length of publication to severity.
As a result, all decisions that result in a sanction or control resulting from a regulatory breach will go on the SRA’s website for a minimum of three years. “This takes into account that even the lowest sanctions, eg rebukes and reprimands, will only be issued where we have decided that there has been a serious breach.”
For firms, fines representing breaches at the “less serious end” will be published for five years, compared to 10 for those at the opposite; the periods will be three and five years respectively for individuals as more serious breaches were likely to lead to suspension or strike-off.
The new regime of fixed-penalty fines – which will deal with non-compliance with administrative requirements – will be public for three years.
Details of suspensions will remain online for 10 years from the end of the suspension, while strike-offs and equivalent will still be published indefinitely.
Where a restriction on practice is lifted, that decision will be published alongside the original one for as long as it remains live.
Decisions to prosecute before the Solicitors Disciplinary Tribunal will continue to be published once the tribunal has certified that there is a case to answer, despite consumer calls for it to be earlier.
“This is despite the risk of the case not proceeding and not being certified by the SDT being very small,” the SRA said.
The regulator will also adopt a more consistent approach to presenting disciplinary decisions and ensure they contain enough information “to allow the reader to understand the facts of the misconduct or issue, the sanction and how the decision on sanction was reached (including any aggravating or mitigating factors)”.
It has produced a draft template that will now be subject to user testing and then piloted before fully rolling it out.
The fining powers consultation attracted only 13 responses; many of the proposals received broad support, including that the most serious fines would be imposed by adjudication panels only, although the SRA has made some minor amendments to its plans as a result.
The SRA confirmed it would take forward a pilot on personal impact statements in relation to sexual misconduct, discrimination and harassment, and link fines for both firms and individuals directly to bandings based on percentages of income/turnover. The limit will be 5% for firms and £805,000 for individuals.
Many respondents opposed basing individuals’ fines on gross income, as it was not a measure of affordability or impact on the individual.
But the SRA said affordability was not the why gross income was chosen: “It is about providing a meaningful deterrent effect and providing confidence to the public that solicitors doing wrong are fined at a level that is commensurate to their position and financial standing.”
It nonetheless reviewed the issue and external consultants confirmed that gross income was the fairest metric to use.
“Their view was that net income would not be a better measure since while higher and additional rate taxpayers pay a higher proportion of their gross income in tax, they may pay a smaller proportion in non-discretionary expenditure, such as utility bills.
“They considered that using disposable income (or taking account of savings) would lead to inconsistencies. In particular, they pointed to the challenges of determining what is necessary and what is discretionary spending.”
Publishing decisions on how fines were reached meant it could be possible to calculate how much an individual earned, prompting strong objections from consultees. The SRA said its approach was “proportionate given the public interest benefits of being transparent”.
It said: “We accept that there is a risk that we are legally challenged when we do publish information that could lead to an individual’s income level being identified but we have sought legal advice and are satisfied that our proposed approach is GDPR and Human Rights Act compliant.”
SRA adjudicators and panels have the power to hold hearings when deciding fines but it has never been used. The power will remain but will be heavily circumscribed. Also, the ability of adjudicators or panels to conduct interviews with the respondent solicitor will not be extended to witnesses.
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