Bradley: We must look at what is happening here
Men and solicitors from Black, Asian and ethnic minority (BAME) backgrounds continue to feature disproportionately in the Solicitors Regulation Authority’s (SRA) enforcement work, new figures have shown.
Around 70% of those who are reported to, and then investigated by, the SRA were men in 2018/19, rising to 85% of those who appeared before the Solicitors Disciplinary Tribunal. Men make up 49% of the profession.
While 18% of solicitors are from a BAME background, they were the subject of 26% of reports to the SRA, rising to 32% of cases that the SRA decided to investigate and then send to the tribunal.
This disproportionality was first identified in 2004, before the SRA existed, and most recently was addressed in a report commissioned from Professor Gus John in 2014. He found it was caused [1] by broader socio-economic factors around access to the profession, and not discrimination by the regulator.
Other investigations have pointed to the fact that BAME lawyers are more likely to work in smaller law firms, which generate more regulatory activity, and certain areas of practice that have long been regulatory hot-spots, such as immigration.
Previous SRA-commissioned research in 2010 found that experience was a greater predictor [2] of whether solicitors would face regulatory action than race, with those at both ends of their careers more likely to be in the SRA’s sights.
The SRA’s Upholding Professional Standards report for 2018/19 – publication of which was delayed by several months because of Covid – recorded the diversity characteristics of those facing enforcement action for the first time since 2014.
It attributed the five-year gap to “challenges with the data” as the SRA focused more on addressing issues at a firm level and fewer solicitors declaring their diversity characteristics on their records.
SRA chair Anna Bradley said: “We must look at what is happening here. We have made significant changes to our enforcement processes and reformed our regulation over the last few years but the picture remains the same and it is unclear why that is the case.
“Since 2007 we have held three independent reviews into our processes to make sure they are fair and free from bias and none found any evidence of issues with our processes. Notwithstanding this, we will look again at our decision making.
Ms Bradley said the SRA would also examine why so many more concerns were being reported about BAME solicitors than the statistics would indicate.
“It is a picture seen across many regulators; some of the potential factors may be wider societal issues and others may be particular to the legal sector. So we will commission independent research into this complex area, reaching out to the profession, key groups and expert voices as we shape this work.”
The SRA will also review its decision-making processes to ensure the ongoing fairness of its assessment processes.
The report also revealed that, during 2018/19, the SRA received 64 reports concerning harassment and inappropriate sexual behaviour in work-related environments, and had 14 open investigations concerning the inappropriate use of non-disclosure agreements.
In 2019/20, it went on, the SRA investigated 16 cases concerning a firm or solicitor failing to properly advise on the existence or impact of ground rent clauses, a growing area of concern.
“We anticipate that complaints will increase further as people either start to hear about our decisions in these early cases, or start trying to sell their properties.”
In all, the SRA dealt with 10,576 reports about solicitors, 61% from the public and 26% from the profession, and dealt with 9,649.
No action was taken on 5,108 of them after an initial review. There were 3,602 investigations carried out, of which 3,116 showed no breach or no serious breach of the rules.
Some 324 led to sanctions imposed by the SRA – 48% were lowest level letters of advice – and 125 went to the tribunal, of whom 71 were struck off and 12 suspended.
Other reports are still being investigated or were referred elsewhere, such as to the Legal Ombudsman.