Lawyers being investigated by the Solicitors Regulation Authority (SRA) should show “regulatory realism” and avoid acting as if they faced private litigation, one of the leading experts on professional misconduct has said.
Tim Dutton KC also described “keeping quiet in the hope that the SRA may not find something” as a “non-starter”, given that “any form of cover-up is almost invariably worse” than the alternative.
Mr Dutton, based at Fountain Court Chambers, was speaking on a podcast from the set on lessons learnt from defending significant Solicitors Disciplinary Tribunal (SDT) cases.
Mr Dutton said lawyers “may instinctively want to fight quite oppressive interventions from the SRA”, but they had to think about co-operation with the regulator, from the outset.
“Of course, an unjust and unmeritorious allegation must be met with an appropriate and robust defence, but we must bear in mind that an SRA investigation is not the same as private litigation.
“Regulatory realism needs to be firmly in the minds of all those advising people subject to an SRA investigation.”
Mr Dutton said one of the critical questions during an SRA investigation was how disclosure should be dealt with.
“Co-operation with the SRA where they are seeking lawful and justified disclosure is absolutely vital.
“Many people think that some documents which may be caught within a disclosure request are better kept confidential or not revealed. Keeping quiet in the hope that the SRA may not find something is in truth a non-starter.
“A key feature of SRA investigations that any form of cover-up is almost invariably worse, whatever criminal or regulatory breach they’re investigating.”
Mr Dutton said the SRA set tight deadlines when it first wrote to firms, but it was often prepared to grant reasonable extensions.
“People can get into a mess by thinking they have to reply within 14 days when something is quite complicated.”
Patricia Robertson KC, the Fountain Court barrister who successfully represented Leigh Day in its epic SDT appearance in 2019, said the SRA could make “incredibly wide-ranging” disclosure requests, regardless of the cost to the law firm involved.
It was “not feasible” for most firms to challenge this in the courts through a judicial review, so it was necessary to engage with the regulator to persuade it to make the request more proportionate.
“At the end of the day, if they won’t play ball, the firm needs to comply and shoulder the cost.”
Also speaking on the podcast, Iain Miller, a regulatory partner at City firm Kingsley Napley, said it was “difficult to underestimate the human cost” of SRA proceedings, and one of the first things to be discussed should be how to support lawyers through what could turn out to be a “very arduous process”.
He went on: “They will often ‘catastrophise’ about the outcome, or the twists and turns that will inevitably flow. This is not helped by the long time the SRA often takes to get to the end of the process.”
Ms Robertson said lawyers should think about their “bedside manner”, but “you can’t be their friend in the process, as well as their lawyer”.
She added that defence lawyers needed a plan in place to deal with any conflicts of interest that might emerge between clients, even at a late stage, such as during cross-examination.