SRA disciplinary decisions could stay in public domain for longer

Details of disciplinary and other regulatory action taken by the Solicitors Regulation Authority (SRA) could be published for longer than the current three years to combat misinformation online, it said yesterday.

The majority of SRA decisions are kept on its website for three years, although those with restrictions lasting longer are kept in the public domain for that period – or indefinitely in cases such as strike-offs.

The SRA yesterday began a consultation on the principles underlying its publication policy, saying it was approaching the exercise “openly” and without a view on the likely outcome.

The key principle, it suggested, was a presumption of open justice and that it would publish information “relevant to understanding the nature of a regulatory decision and why it was reached, unless there is a good reason not to”.

The consultation said that, in the 15 years since the policy was last reviewed, the digital world had increased expectations about decision making in the public domain and transparency.

“There is also more online commentary about decisions, beyond officially published information and we increasingly find that the right to be forgotten is limited, with information remaining online for periods that far exceed our official publication length.”

With more people using online searches to choose a solicitor and check their regulatory record, the SRA said “we are concerned that information available from third-party sources (such as a search engine) might be incomplete or lacking context long after the official record has been removed”.

It said other regulators have explored ‘tiered publication’ for different lengths of time based on the seriousness of the sanction the issue, such as publishing reprimands for one year, fines for three years and strike offs, suspensions, and conditions until they were lifted.

The Bar Standards Board publishes a period of suspension under 12 months for three years, but a longer suspension for five years; it has also recently decreased its publication periods for fines to two years.

The consultation also seeks views on the level of detail published. The SRA said its recent consultation on fining powers “heard views from some parts of the profession that they would like more information about the regulatory decisions we make and, indeed, for all decisions to be published in full”.

It explained: “This included a call for the publication of the full details of the facts of the case, any arguments raised by both us and respondents, and reporting of mitigating circumstances that would aid transparency and precedent setting.

“However, it may also be argued that too much detail of a technical nature may make the information less accessible for some, particularly members of the public, so could hamper transparency.”

Another key issue was the timing of publication, particularly whether the SRA should be more open about ongoing investigations and whether it should go public with referrals to the Solicitors Disciplinary Tribunal before the latter has certified there was a case to answer, which it almost always did.

Finally, the consultation asks about the types of exceptional circumstances that might lead the regulator to decide not to publish information it normally would.

SRA chair Anna Bradley said: “We are very much open to views on this. It is well over a decade since we established the principles of our current approach. A lot has changed since then, including significant shifts in what people can – and expect – to be able to access online.

“There is an argument for more transparency, and that could help both the public and employers make informed decisions, while reinforcing the importance of high professional standards. Yet there are key questions around the practicalities of this, particularly given the needs of different audiences.

“We are really keen to hear the views of both the public and profession as to what approach we should take.”

The consultation closes on 2 August.

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