Blacklaws: Common-sense approach
There should be specific protection against victimisation for compliance officers who report their solicitors to their regulator, the Law Society has argued.
It has also told the Solicitors Regulation Authority (SRA) that a solicitor who reports a likely serious breach of the rules to their compliance officer has done their duty and need not do more.
The Law Society was responding to the SRA’s consultation on a clearer threshold [1] for law firms to use when deciding whether to report concerns over misconduct.
The society said it was “supportive of the principle underlying the consultation” and, of the four options put forward, favoured the one that would require solicitors to report to the SRA or another approved regulator any facts of matters that “you reasonably believe indicate a serious breach of their regulatory arrangements by any person regulated by them (including you) is likely to have occurred”.
This was a higher threshold than two of the options – where believing that a breach was “capable of having occurred” would be enough – and used the word “reasonably” to indicate that there must always be an obligation to act within parameters that would be regarded as objectively justifiable.
But the society added: “The degree to which the test will be a success will depend on the SRA providing clear and accessible guidance which explains how the test will work in practice, alongside a proportionate and consistent enforcement approach.”
Chancery Lane also urged the regulator to re-instate a requirement from previous editions of the Solicitors’ Code of Conduct that said “you must not victimise a person for reporting your conduct to the SRA”.
This should also ensure that, if a compliance officer reported matters that turned out not to involve any proved misconduct, they would not face legal action from the solicitor or employee they reported.
The response said it was important for SRA guidance to address whether it was sufficient for a solicitor within a firm to report a likely serious breach to their compliance officer.
“We would argue that it is right for a solicitor to be discharged of their responsibility to report within a regulated firm once they have reported to their compliance officer.
“It is then for the compliance officer to ensure that the potential breach is investigated and, if the reporting obligation is triggered, to make that report to the SRA.
“It would be unreasonable to expect any individual solicitor to monitor how the compliance officer and firm deal with the outcome of any investigation and be under a continuing duty to report if the incident gives rise in their view to a serious breach.”
A solicitor would still be able to make a report directly to the SRA, however.
Law Society president Christina Blacklaws said: “Working environments should be safe for all. It is imperative that the solicitor profession has a system for dealing with misconduct so that matters are dealt with appropriately and promptly.
“It is in the best interests of the public, our members and their clients that there is a clearly defined and easily understood process for dealing with misconduct and allegations of misconduct.
“We recommend a common-sense approach that recognises the importance of reporting serious concerns to the regulator promptly, but equally doesn’t result in over-reporting that could be unmanageable.”