By Legal Futures Associate CILEx Regulation
Most of you accept that membership of a professional body brings with it benefits as well as obligations; but what does being a CILEX member really mean to you?
If you joined recently, you’ll remember CILEX informed you about your obligations to comply with the Charter, Bylaws and Rules applicable to you. However, for others, your dealings with CILEx Regulation may be infrequent, at arm’s length and sometimes seen as a formality; things you must do to ensure you have complied with your regulatory obligations such as submitting your CPD and prior conduct declarations annually.
Principle 4, Outcome 4.1 of the CILEx Code of Conduct requires you to comply with your legal and regulatory obligations and deal with regulators and ombudsmen openly, promptly and cooperatively. In this first article on the topic, we focus on the particular benefits of cooperation with CILEx Regulation during a misconduct investigation.
No-one wants to be the subject of a report of suspected wrongdoing. At CILEx Regulation we recognise it’s stressful and difficult and we seek to be proportionate in our approach. We will take action only when it is necessary to do so. This is usually when a person or firm we regulate breaks the Code in a serious way.
If we receive a report suggesting a possible breach of the Code and we make initial enquiries of you, this does not mean we have decided you are guilty of misconduct. It does mean that we need to understand fully the conduct reported to us and it give you the opportunity to explain it from your side, and to be heard.
Your communication and cooperation with us can make the difference between us putting formal allegations to you or perhaps deciding that no further action is needed. Have a look at the case studies below. Your response can also affect how the allegation is determined.
Take, for example, a report of learner malpractice. CILEx Regulation sometimes receives reports from CILEX about members who breached CILEX exam and/or assessment regulations in some way.
The regulations state that “the Qualifications Malpractice Committee may refer proven cases of malpractice to CILEx Regulation for further investigation where it believes the malpractice could amount to a breach of the CILEx code of conduct”.
These recent investigations have led to very different outcomes.
The member admitted to the CILEX Qualifications Malpractice Committee (QMC) that they had cheated as a result of having copied another’s work (a significant breach). When CILEx Regulation alleged misconduct i.e. a breach of Principles 2 and 3 of the Code of Conduct, the member immediately admitted the misconduct. This had the beneficial effect of bringing the CILEx Regulation investigation to an end and agreeing to determine the matter by consent (DBC). In so doing, the member avoided the unnecessary stress, delay and costs of a Disciplinary Tribunal hearing.
In agreeing the DBC the member had cooperated fully with CILEx Regulation. In turn we took into account their representations, insight of and remorse for the misconduct, previous good character, supportive references from the employer and case law. The member was excluded from CILEX for a short period but remained in employment in legal practice.
The member took and used a CILEX study manual in an exam with remote invigilation. They admitted this to the QMC and accepted they had made certain assumptions about the exam conditions. They accepted their exam results were properly voided. During CILEx Regulation’s investigation the member cooperated fully with the investigator both in writing and on the phone. The member’s willingness to speak to the investigator had the positive effect of CILEx Regulation being able to have a supportive conversation with them as to how and why the member had made the mistaken assumptions. CILEx Regulation was able to remind them of their regulatory obligations (including the requirement to declare the matter as prior conduct) and was reassured that a change in the member’s approach would avoid the same mistake in the future.
The member made an online declaration of prior conduct as required by Rule 11(1)(g) of the CILEx Regulation Enforcement Rules. CILEx Regulation was satisfied there was no dishonesty or lack of integrity and decided to take no further action against the member.
The member took written notes into an exam in breach of the regulations. They admitted this to the QMC but were otherwise uncooperative with the QMC’s investigations and did not want to be part of it. The QMC imposed a written warning. The member failed entirely to cooperate with CILEx Regulation’s investigation. CILEx Regulation did not allege dishonesty, nevertheless the member failed to respond to allegations of breaching Principle 2, outcome 2.2 and Principle 4, outcome 4.1 of the Code of Conduct simply saying it was irrelevant and they were not interested.
This response prevented CILEx Regulation from being able to investigate the member’s circumstances at the time of the exam breach and consider their explanation for it. This served only to disadvantage the member as it ruled out taking no further action or the possibility of agreeing a DBC. It increased the likelihood of additional allegations in breach of Principle 4, outcome 4.4 and the associated costs of a disciplinary tribunal hearing.
Reports of allegations of misconduct are investigated on a case-by-case basis. We are in no way suggesting you must admit misconduct in order to cooperate. However, these examples illustrate the potential benefits of cooperation and the potential adverse effect of non-cooperation with your regulator.
Have a look at the CILEx Regulation website to see what information we provide to the public in relation to the reports they make to us about when and how we deal with them.