All stick and no carrot?
Posted by Neil Rose, Editor, Legal Futures
The Solicitors Disciplinary Tribunal (SDT) has never been overly keen on the Solicitors Regulation Authority (SRA) having its own powers to rebuke and fine solicitors – that should be the job of an independent tribunal, the message has been – and the SDT has been vociferous (particularly by its standards) in opposing SRA plans to increase the current £2,000 fine limit.
So it did not hold back when, for the first time, it was handed the opportunity to review an SRA decision to rebuke a solicitor. It was helpful in this regard that the SRA adjudication panel appeared to make a complete mess of its own review of the original adjudicator’s decision – to the extent, in fact, that it conducted a rehearing rather than the review its rules said it should have undertaken.
That was just the start of the problems, and the story on Legal Futures yesterday detailed the many ways in which the panel got things wrong, according to the SDT.
Obviously you cannot read too much into a single decision, but the ruling left me feeling uneasy about the way such SRA panels operate. As laid out by the SDT, it smacked of an adjudication panel that did not act with anything like the rigour it should have done in assessing the evidence and considering the extent to which the SRA itself contributed to the issues that had arisen with Hafiz & Haque. Basically it read more like a rubber-stamping exercise.
The decision – and that of the adjudicator in the first place – also betrayed an uncompromising approach to rule breaches that we have been told is no longer the way the SRA operates. The evidence indicated that the solicitor involved was trying to comply but was confused by the information he received (when the SRA sent it to the right e-mail address, that is) – isn’t this exactly the kind of situation where the SRA is supposed to adopt ‘constructive engagement’ rather than just wield a big stick?
The solicitor was not blameless, but was his failure so egregious that he deserved to be one of the small number of the many who breached the rules around COLP and COFA nominations to face a formal sanction? It doesn’t appear so.
Adjudication panels operate with little formal oversight, which could lead to a certain laxness. Is the lack of appeals against panel decisions because they are so robust in their decision-making as to be unimpeachable or because solicitors simply haven’t the will or the resource to pursue their cases further? Either way, this ruling should focus minds at the SRA.
The decision of the adjudication panel in this case provides stark evidence that despite proclaiming to adopt an “outcomes focused approach” in reality nothing has changed. The black and white approach of the SRA continues as a direct result of its own internal failure to re-train or recruit staff in key areas.
The SRA has continued to outwardly project a “we are right, and you are wrong” attitude in almost every ‘engagement’ with the profession and I am extremely concerned by the SRA’s attempts to wield even more power by getting its fining powers increased. I am not aware, nor have I been able to find any occasion where, having decided to impose an internal fine, the SRA has not gone on to impose the maximum £2,000. Surely the suggestion can not be that every case desired the maximum fine?
When it received the ability to fine the profession the SRA heralded this development as something that would benefit the profession. Only the really serious matters would go to the SDT. Those solicitors who accepted breaches and accepted a fine could now escape the costs associated with a full SDT hearing and have the matter dealt with far quicker allowing them to get back to their practices.
In fact the SRA has used its internal fining powers as a tool of entrapment in circumstances where the allegations are particularly dubious and had a real prospect of not being found at the Tribunal – “accept the breaches, pay the fine and that will be the end of it.” (See the recent rush of SDLT cases dealt with internally following the SDT’s decision in Grindrod). Sadly, as the article suggests many solicitors simply don’t have the will or the funds to challenge the SRA and will concede to paying the fine just to see an end to the matter.
Worse still is that the SRA will cling to the comments of the SDT advising the solicitor from Hafiz & Haque to pull his socks up as justification for acting as it did.
More bloodied noses will do little to set the Stubborn Regulation Authority on a new path.