From consultation to War and Peace

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9 June 2010

Posted by Duncan Finlyson, manager of the Lawyers Defence Group

Finlayson: new handbook is a tough but necessary read

Those hard-working souls at the Solicitors Regulation Authority (SRA) who labour away every day with only the vilification of the profession and the exhortations of the Legal Services Board to keep their spirits aloft should, without doubt, be praised for the mammoth undertaking they have achieved in producing the new Solicitors Handbook on time for consultation (see story). Who, I wonder, will spare a thought for those who respond to the consultation?

Indeed, given the rather meagre level of responses that the SRA has traditionally received to far less complex consultations than this, I cannot help but wonder also whether anyone will respond at all. Having waded through the 37 pages of the main consultation paper, many will, I suspect, feel that they do not possess the stamina to take on the might and complexity of the annexes, and all that they imply.

I have just started upon this particular journey myself with a view both to responding to the consultation and putting some observations on the Lawyers Defence Group web site ( Knowing that I will not be near a computer screen all of the time, and not having access to something as portable as the new iPad, I have endeavoured to print off those parts which I felt would be most relevant. I may never be able to look a tree in the face again without feeling the guilt of a serial paper-user.

Given that this is the third consultation in less than six months, then, even allowing for the relatively high importance of the outcome, it is still a large amount of detail that an already work-beset profession is being asked to take on board, whether they chose to comment or not.

The structure of the consultation

One has to admit that the consultation is nothing if not thorough.

Not only does the main body of the consultation itself address a range of topics, including strategic objectives, alternative business structures, multi-disciplinary practices, outcomes-focused regulation and protection of the public, to name but a few, it also contains a new code of conduct, updated versions of the Solicitors Accounts Rules, and 12 annexes, several of which are presented as separate documents to be read in conjunction with the consultation.

The revised code of conduct is particularly to be praised for its brevity – if not always for its clarity, practicality or contribution to the future well-being of solicitors. It currently comes in at a “mere” 34 A4 pages (the original version of the Solicitors Code of Conduct was about 270 pages). Granted large chunks of the original code have been moved to other parts of the Handbook – most notably the provisions dealing with European cross-border practice (previously to be found in rule 16), property selling (previously in rule 18), and authorisation and practising requirements (drawn from rules 12, 13, 14 and 20).

What perhaps should also be borne in mind, however, is that the ILEX Professional Standards Code of Conduct released in May extends to just six pages, whilst the licensed conveyancers get away with ten pages (although granted a positive morass of other rules and codes).

Missed opportunities

Despite that praise, I do feel that some opportunities have been missed, although given the timescales to which the SRA have been working, this is hardly surprising.

The first of those relates to the structure of the Solicitors Accounts Rules, which are still a somewhat confusing mishmash of rules and notes (now called guidance notes) and where clarity has been exchanged for the preservation, so far as possible, of the previous numbering system. Given the importance of these rules, I cannot help but regret that more effort wasn’t made to make them more user friendly and intelligible.

The second missed opportunity is that no attempt has been made to assist solicitors in navigating their way through some of the more complex rules, such as the framework of practice rule and those rules which come under the heading of disciplinary procedure rules. These rules are not easy to digest and yet are fundamental to the operation of most practices. Unless practitioners know what is in them or can take the time to read through them all sifting out the relevant pieces of information as they go, most are not going to realise what they have to comply with.

In conclusion

I am not sure I could truly say that I am excited by, or even looking forward to working through, the SRA Handbook – I tend to reserve the term excitement for those things that happen outside of the work place – but I am certainly intrigued to see to what extent a prescriptive rules-based system has moved towards a more outcomes-focused one.

I suspect that only time will tell whether the profession is able to cope with this, or indeed whether the SRA are willing to concentrate its efforts away from technical breaches and concentrate on the bigger picture.

If I were writing a school report about the SRA and its work on the new handbook, I might possibly say “Shows great promise and could go far”. On the other hand I might also be tempted to say “Should take more time over homework and not rush to put something down on paper for the sake of it” – but then that’s not the SRA’s fault!

The Lawyers Defence Group is a Legal Futures Associate.

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