The Solicitors Regulation Authority (SRA) needs to rethink its approach radically to tackle the “grimly entrenched” problem of ethnic minority solicitors being over-represented in its enforcement work, it is argued today.
A white paper from law firm Leigh Day made recommendations ranging from requiring insurers to cover solicitors’ regulatory defence costs, to a long-term reconsideration of whether the current regulatory model should move to a more ‘coaching’, collaborative one.
That solicitors from Black, Asian and minority ethnic backgrounds feature disproportionately in enforcement work was first identified in 2004, before the SRA even existed, and was addressed in a report it commissioned from Professor Gus John in 2014.
He found it was caused 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.
After a hiatus in addressing the issue, the SRA published figures late last year showing that the problem persisted and announced a range of initiatives to address it.
Leigh Day has also been investigating, holding two ‘Quest for regulatory equality’ events in the last year, the second featuring Professor John, at which he expressed disappointment at how little had changed since his review.
The white paper emerging from this work, published today, acknowledged that the disproportionality was a complex issue not unique to the SRA among professional regulators, and that the SRA was “demonstrably engaging” with issues of equality, diversity and inclusion.
“That, however, cannot excuse a less than rigorous analysis of what the SRA has been doing to address the issue,” it said.
An overarching recommendation was that the SRA should reconsider its approach to the regulatory objectives.
This meant questioning the continued appropriateness of a regulatory model based primarily on enforcement, rather than “supervision, support and remedy”, the need to improve access to justice for all, and the “urgent need” to promote an independent, strong, diverse and effective legal profession.
Leigh Day called for more data about the SRA’s enforcement work – for example, data published so far provided “no insight” into whether White and BAME solicitors received similar outcomes for similar breaches.
It further recommended that the SRA monitor more closely how its investigators exercise their discretion and also consider creating an independent external review team “to underpin the rigour” of its proposed internal quality assurance measures.
Another way to build trust and confidence would be to train experienced and practising solicitors to play a role in the investigation process.
Finally, Leigh Day said the SRA should reverse its decision in 2010 to remove regulatory defence costs from the professional indemnity insurance minimum terms and conditions.
Small law firms, with a higher proportion of ethnic minority solicitors, have been “disproportionately impacted” by this decision, and the white paper argued that holding the SRA’s investigations up to “proper scrutiny” should not be the “privilege” of mainly White practitioners in larger or City firms.
Leigh Day said: “It is understood that there may be resistance (from insurers) or other obstacles to this, not least in the current professional indemnity insurance market, but it is something that ought to be explored in a meaningful and serious manner.
“This would not only help level the playing field but would also boost confidence that the SRA is open to being challenged and accountable.”
The law firm, which used the term Global Majority rather than ethnic minority in the white paper, said small firms “often experience greater financial pressures” than larger firms and tended not to buy additional cover for regulatory defence costs.
There was no “comprehensive data” to show that, following the decision to remove cover, the public had benefited from lower legal fees.
“Having the benefit of expert assistance in responding to an SRA investigation very often plays a significant part in achieving a better outcome for the respondent as it serves to hold the SRA’s investigation up to scrutiny both at an earlier stage in the process and through more rigorous regulatory analysis.
“Smaller firms and sole practices who have not bought additional cover will therefore be disproportionately impacted.
“As Global Majority solicitors are over-represented in these types of practices, the disproportionate impact on them will be amplified.”
Gideon Habel, partner and head of the regulatory and disciplinary team at Leigh Day, commented: “We are really worried that, despite its public pronouncements on this issue, the SRA’s thinking about how to bring about meaningful change does not go far enough.
“Clearly, the SRA operates in a society still influenced by systemic inequalities and prejudice but this should not be used as an excuse in the quest to discover the root causes of this issue.
“The SRA must look internally first, otherwise it risks failing to ensure its own house is in order before looking elsewhere for answers.
“We have worked with our expert panellists and attendees to formulate recommendations we feel offer a different approach to a grimly entrenched problem.”