Ethics: Questions over solicitors’ understanding of their obligations
The Solicitors Regulation Authority (SRA) is to step up efforts to ensure compliance with continuing competence obligations, particularly among conveyancers and probate specialists.
A data analysis published this week found that these were the two areas of practice that generated the most concerns.
There will also be a focus on ensuring that solicitors act ethically by understanding and upholding their professional obligations, along with exploring whether to require solicitors to maintain a training record.
The first of what will now be an annual assessment of continuing competence has been published as part of the SRA’s response to a demand from the Legal Services Board last year that regulators deliver action plans on improving their ongoing competence regimes.
It contains an analysis of 42,000 reports about solicitors received between January 2019 and January 2023, merged with other data held by the SRA – generating tens of millions of unique data points – as well as data from the Legal Ombudsman and HM Land Registry.
This showed that there were significantly more reports concerning ethics, professionalism and judgment – section A of the SRA’s statement of solicitor competence – than the other three sections: working with other people, technical legal practice and ‘managing themselves and their work’.
“In terms of absolute numbers, we received more reports relating to both residential conveyancing and probate matters than any other area of law,” the assessment said.
“Not all the reports we received result in a regulatory decision. However, we found that residential conveyancing and probate are also the areas of practice where we are most likely to take regulatory decisions.”
The regulator also received more reports about residential conveyancing firms than any other type of specialist firm.
As a result, it is to carry out thematic inspections across a sample of residential conveyancing and probate firms.
“We will assess whether and, if so, how solicitors are meeting their obligations to keep their knowledge and skills up-to-date, including ethics, professionalism and judgment and technical legal practice. We will also review supervision arrangements within these firms.”
The SRA will sample the training records of solicitors handling this work and write to conveyancing firms “to remind them of their obligation to make sure that the solicitors they employ maintain their competence”, while also conducting research to understand the risks to, and impact on, consumers of a lack of competence in residential conveyancing and probate services.
The data analysis also pointed the SRA to the need to monitor solicitors’ and firms’ competence in immigration and asylum work.
A separate examination of the SRA monitoring and inspection activity found that many training records failed to show that the learning and development undertaken had been informed by the solicitor’s reflection on their practice – a key element of the continuing competence regime.
“We found that competing demands on some solicitors’ time was a barrier to reflection. We also identified that some senior solicitors felt that, given their seniority, they did not need to regularly reflect on their practice and address identified learning and development needs.”
The SRA said it would publish guidance next year to further explain “that we expect solicitors to reflect and how they can effectively do this. We will also outline how we expect firms to support such reflection”.
The assessment showed too that solicitors were not always aware of guidance issued by the SRA and “did not regularly carry out learning and development focused on upholding their professional obligations”.
The thematic reviews into non-disclosure agreements and conduct in disputes, for example, both found shortcomings in solicitors’ knowledge of relevant SRA guidance, while a quarter of junior solicitors interviewed as part of the in-house thematic review had not received any ethical training.
“We will seek further assurance that solicitors practising across all areas of law understand both how their professional obligations apply to, and the specific risks associated with, their area of practice and are carrying out learning and development if a need for this is identified.
“We will carry out a thematic review to help us understand whether and, if so, how solicitors are doing this. The findings from this work will inform whether we need to develop our regulatory approach regarding maintaining competence in this area.”
Finally, the regulator will review the declaration solicitors (or firms on their behalf) have to complete when renewing their practising certificate.
“We will focus on understanding whether the current declaration drives the learning and development behaviours we expect to see in practice. We will also explore whether maintaining a training record should be a regulatory requirement.”
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