Where a formal response is required, we will take action that is proportionate to the risk, weighing the interests of the public against those of the individual or firm involved. We will consider the available sanctions and controls in turn, starting with the least restrictive. The full range of regulatory and disciplinary outcomes available to us (both sanctions and controls), their purpose and indicative criteria for their use, is in .
As we have said, our response will reflect the seriousness of any breach. Our assessment of seriousness will necessarily involve looking at past conduct and behaviour.
However, our assessment of any future risk will look forward as well as back. Mitigating features of a case which might be indicative of reduced or low future risk include:
- expressions of apology
- regret
- remorse
- no evidence of repetition of the misconduct, or a pattern of misconduct.
Further, we can take into account the systems in place and environment in which the events took place; and the responsibility or control the individual had over the matters in question. This allows us to respond robustly, but appropriately, to concerns raised in relation to solicitors working in diverse range of practice settings, including outside of an authorised body.
In taking into account mitigation, we will distinguish between "contextual" mitigation –which relates to the events giving rise to the alleged breach and has a bearing on the nature and seriousness of the breach - and personal mitigation – which relates to the background, character and circumstances of the individual or firm and which is usually more relevant to sanction.
Contextual mitigation might include features of the environment in which the solicitor was working and which affected their judgment or any action they were able to take. Personal mitigation might include:
- testimonials or evidence of insight
- cooperation with any investigation or audit processes or
- remedial action taken since the events.
Sometimes information will be relevant to both: for example past misconduct or findings demonstrating a pattern of behaviour or a propensity to behave (for example) dishonestly.
We recognise the stressful circumstances in which many solicitors and firms are working and are aware that the health of the individual at the time of the events may have a significant bearing on the nature and seriousness of the alleged breach.
Further, we are aware of the impact that being complained about and going through an investigation can have on people – and that this can exacerbate or trigger health issues. We have procedures in place to support those going through our processes, to make sure that we are fair and take into account their health needs and make reasonable adjustments to enable them to participate fully.
The nature of the allegation
We see certain types of allegations as inherently more serious than others: for example, we will always take seriously allegations of abuse of trust, taking unfair advantage of clients or others, and the misuse of client money; as we will sexual and violent misconduct, dishonesty and criminal behaviour (described further below).
Information security is also of high importance to the public and protection of confidential information is a core professional principle in the Legal Services Act 2007.
Read more information on our approach to risk assessment and deciding whether to investigate a concern.
However, there are some common factors that affect the view we take of how serious an allegation is as set out below.
Intent/Motivation
The seriousness of a breach may be dependent on the intention behind it. We will distinguish between people who are trying to do the right thing and those who are not.
Human and system error is inevitable and we will generally take no action where a poor outcome is solely the result of a genuine mistake. However, we may take action where a failure to meet our standards or requirements arises from a lack of knowledge which the individual should or could reasonably be expected to have acquired, or which demonstrates a lack of judgment which is of concern. We would take into account matters such as the experience and seniority of the individual involved (in other words, whether they knew, or should have known, better).
Where a firm or an individual has been a victim, for example, of cybercrime, our primary focus would not be to penalise them for any adverse outcomes arising. However, we are likely to review, for example, whether their systems and procedures were robust enough and reasonable protective measures were in place.
In relation to errors of law or professional judgment, generally we will not penalise a single negligent act or an omission without evidence of seriously or persistently poor levels of competence which demonstrate behaviour falling well below expected standards. We are likely to consider such matters as more serious where a firm or an individual has knowingly acted outside their competence or has failed to take reasonable steps to update their knowledge and skills, or those of their employees.
We will view more seriously events which demonstrate that the individual or firm has a deliberate or reckless disregard for their obligations. Recklessness is serious because it demonstrates inappropriate risk taking, and a lack of regard for the consequences of one's actions.
Conduct or behaviour which demonstrates a lack of honesty or integrity are at the highest end of the spectrum, in a "profession whose reputation depends on trust". The Courts have stated that any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon them by the Solicitors Disciplinary Tribunal. The most serious involves proven dishonesty.
This is important because of the uneven relationship, which requires clients to place their trust in their lawyers, for example, because of the information asymmetry between them, or the access the lawyer has to the client's funds and often to sensitive personal information. Trust in the legal profession is also important to support the rule of law, because of the influence and impact the profession has upon the court process and the administration of justice.
When considering intent and motivation, we will consider factors such as whether the conduct was planned and premeditated, persistent or repeated. We will look at any benefit or advantage gained from the conduct and any response to the events including demonstrable insight and remedial action, or whether there has been an attempt to conceal a problem which can act as an aggravating factor, as well as being seen as an episode of dishonest misconduct in itself.
Harm and impact
We take into account the harm caused by the individual or firm's actions and the impact this has had on the victim. This will be fact sensitive and depend on individual circumstances. We will look at the numbers of victims, the level of any financial loss or any physical or mental harm. We will also consider behaviour which harms an individual's personal autonomy and dignity, and treat fundamental rights to privacy and non-discriminatory treatment as at the higher end of seriousness, irrespective of any financial or other harm.
We also take into account harm that could reasonably have been anticipated to arise from the conduct or behaviour in question. This directs our focus onto behaviour that represents a risk, even if harm may not have materialised. For example, a solicitor may seek to mislead the court by creating a false document, which, in the event, is not relied upon in court and does not result in a different outcome for the parties.
For this reason, the question of whether harm materialised is not determinative of whether we will take action: we may take action where no harm has arisen where the behaviour gave rise to a real risk of harm, or other aggravating features are present; and we may decide not to take action where harm arose from a genuine mistake or where other mitigating features are present.
However, in some cases, the actual harm suffered will increase the seriousness of the conduct, and either lead to a more serious outcome (for example, if a solicitor misuses client funds and this leads to a large number of clients suffering hardship and distress as a result) or will lead us to the decision that the case requires us to take action to maintain public confidence.
Vulnerability
As described above, solicitors and clients have an uneven relationship, but not all clients are the same.
Some clients will be more susceptible to harm, for example, as a result of:
- barriers preventing access to legal services, or the lack of choice of legal provider, for example due to cost or geographical location
- the situation giving rise to the need for advice, for example, involvement in a sensitive family matter
- the effect of a poor outcome leading to a greater impact, such as loss of personal liberty, or deportation in an asylum case
- their personal attributes or circumstances, such as a health issue or learning disability.
Vulnerability is not static: it may be short term, or permanent; and may result from the structure of the market, the nature of the legal services, the client's personal circumstances, or a combination of factors. Corporate clients may have large in-house teams and be sophisticated purchasers of legal services - but may also be vulnerable in some transactions or circumstances.
We consider it an important part of our role to protect those who are less able to protect themselves and will consider an allegation to be particularly serious where the client's – or a third party's – vulnerability is relevant to the culpable behaviour. This may be because:
- the solicitor took advantage of the person's vulnerability to, for example, provide misleading information
- of the raised awareness the solicitor should have had about the need, for example, to communicate effectively or ensure that the client is in a position to protect their own rights or
- of any enhanced impact on the client as a result of their vulnerability which the solicitor could and should have anticipated.
Role, experience and seniority
We recognise that certain stages in an individual's career can present a steep learning curve - such as becoming a trainee, a newly qualified solicitor, or a partner for the first time. We would expect solicitors to gain a deeper understanding of appropriate behaviour and of the law and regulation governing their work, as their career progresses. And for those with more seniority and experience to have higher levels of insight, foresight, more knowledge and better judgment.
Part of being fair and proportionate is ensuring that those within an organisation, with real control and influence over the situation, are held accountable. The context in which professionals work, the culture of an organisation and pressure from peers and managers, is likely to have significant impact on their actions and decisions. Therefore, we recognise that a person's inexperience or relatively junior role within an organisation may impact on their ability to take appropriate action, although will not be an answer to serious misconduct such as dishonesty.
Regulatory history and patterns of behaviour
Once we have identified a breach of our standards or requirements, a key factor when deciding what to do next will be whether the behaviour forms part of a pattern of repeated misconduct or regulatory breaches. This can indicate a propensity to commit certain breaches of our standards or requirements, or a failure in systems and controls, or an unwillingness or inability to learn lessons. This may result in our taking action even if such breaches on their own might be regarded as less serious.
For this reason, we will review our records for previous complaints and findings against the individual or firm. This will include information about any findings made by other courts, tribunals and regulatory bodies as well as previous SRA matters resulting in, for example, a financial penalty or closure of a case with an advice or a warning, and previous disciplinary matters before the Tribunal where allegations were found proved, together with any sanction imposed.
Remediation
When assessing the risk of future harm, factors such as the length of time since the events, insight into the conduct or behaviour, and any remedial action taken, are relevant to our decision whether to investigate an allegation and, if so, what action to take. For example, a firm with weak systems may have been a victim of a cyber-attack, and promptly taken action to ensure that this could not happen again. A timely self-report and early engagement provides us with evidence of that insight and gives us confidence that the firm has an ethical culture and the ability to manage risk.
However, there are some kinds of conduct for which such considerations have less relevance. For example, where the misconduct indicates a lack of honesty or integrity, we may consider that the matter cannot be remediated or that in any event, action is necessary in order to uphold public confidence in the legal profession. As stated in Bolton -v- The Law Society:
Because orders made by the Tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. ... All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness… The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.
Relationship with legal practice and our core regulatory jurisdiction – other regulators
We operate within a wider framework of bodies that are currently providing oversight and redress in this sector. We are aware that our regulation will overlap with others where individuals regulated by other regulators such as, for example, barristers or members of the Chartered Institute of Legal Executives (CILEx) are working alongside solicitors in a firm we regulate. Further, the Legal Ombudsman (LeO) deals with service complaints about regulated lawyers and legal service providers. We have arrangements with LeO to make sure that there is a clear understanding about the type of complaints that should be handled by LeO in the first instance, and which by us.
Individuals and firms we regulate will also commonly be subject to other, non-legal, regulatory jurisdictions. They will be subject to the Information Commissioner's Office (ICO) in relation to their handling of personal data, or, for example, the Institute of Chartered Accountants in England and Wales (ICAEW) where working in or as an accountancy multi-disciplinary practice.
We will not investigate an issue which is the jurisdiction of another regulator or prosecuting authority, unless it also raises an issue which is core to our regulatory role and public interest purpose. The closer the matter is to our role and purpose, the more likely it is that we will take action. For example, enforcement of data protection legislation is a matter for the ICO, but if a data protection breach also involves the disclosure of confidential client information, then we will investigate that as a regulatory offence. More guidance on our approach to taking forward an investigation where there are parallel proceedings.
Private life
Our key role is to act on wrongdoing which relates to an individual or a firm's legal practice. We will not get involved in complaints against a solicitor which relate solely to, for example, their competence as a school governor or their involvement in a neighbour dispute. However, our Principles set out the core ethical values we require of all those we regulate and apply at all times and in all contexts.
We are concerned with the impact of conduct outside of legal practice including in the private lives of those we regulate if this touches on risk to the delivery of safe legal services in future. The closer any behaviour is to professional activities, or a reflection of how a solicitor might behave in a professional context, the more seriously we are likely to view it. For example, an allegation of financial impropriety against a solicitor when acting as a Member of Parliament, will raise a question as to their fitness to manage client funds. However, we will also be interested in matters that are so serious that they are capable of damaging public confidence, such as dishonest or discriminatory conduct in any context.
Criminal convictions
We will always investigate criminal convictions or cautions whether or not these relate to the individual's practice, given the importance of rule-abiding behaviour and public confidence in those involved in the overall effectiveness of our criminal justice system.
However, we continue to take a proportionate approach to our regulation and are less likely to be concerned about behaviour which is at a low-level in terms of seriousness (for example, actions that result in fixed penalty notices, or minor motoring offences). We will take more seriously convictions for drink driving, assault and other offences against the person, and property offences. At the most serious end of the spectrum are convictions resulting in custodial sentences, particularly those relating to dishonesty, fraud, bribery and extortion; those associated with terrorism, money laundering or obstructing the course of justice (such as perjury or witness tampering) or facilitating or concealing serious or organised criminality by others; or those involving violence, sexual misconduct or child sexual abuse images.