The SRA's statement on the settlement of regulatory and disciplinary cases marked the beginning of significant changes to the Law Society's approach to the regulation of the profession, driven by the stated aims of improving transparency, proportionality and efficiency.
Previously, the SRA (and prior to that the Law Society) reviewed complaints made against solicitors with a view to determining whether any complaint should be referred on to the Solicitors' Disciplinary Tribunal. Where a complaint was not deemed to be sufficiently serious to warrant such a step, the SRA issued 'findings and warnings', 'reprimands' and 'severe reprimands' which would sit on a solicitor's record but not be made public. If any further complaints were then made, the existence of these previous rebukes would be taken into account.
The regime introduces two new regulatory outcomes for misconduct: "Settlement Agreements" (which have the effect of settling an SRA investigation, subject to certain conditions imposed by the SRA) and "Issue Agreements" (which are agreements in relation to specific issues that do not have the effect of concluding an entire SRA investigation, the remainder of which may continue). The SRA has indicated that the new regulatory outcomes will supplement rather than supplant the existing scheme. For example, an Agreement may carry the condition that a reprimand or severe reprimand be imposed by the SRA.
"Agreements" are regulatory decisions of the SRA, the terms of which are accepted by the solicitor in question. They are not the equivalent of settlement of a commercial dispute. Both forms of "Agreement" will set out the steps the solicitor must take to remedy a breach of the rules, and future compliance with the agreed steps will be policed by the SRA, with any material breach of an Agreement amounting to professional misconduct.
The terms of any Agreement will be tailored to the individual case in question, but all Agreements will follow the same form: they will be in writing, and will state the relevant facts, identify the failings of the solicitor, the action the solicitor has agreed to take, and detail any sanction imposed by the Agreement. Significantly, it is understood (unless agreed otherwise) that Agreements will be published by the SRA.
As part of an Agreement, the SRA may agree with a solicitor on a scheme of correction or improvement to put right the error in issue. A solicitor may also, or alternatively, enter into an Agreement with the SRA that a public statement is published whereby a solicitor acknowledges a failure and sets out what will be done to avoid such a failure in the future. Examples given of when a public statement would be appropriate are systems failures within firms (rather than individual failure) or a failure of supervision within a firm leading to misconduct by an individual who is no longer with the firm.
The introduction of Agreements would appear to mark a paradigm shift in the approach of the SRA to the regulation of the profession. The focus is not so much on the chastisement of errant solicitors, but on encouraging reparation and correction (and doing so publicly). The SRA is likely to take a far more proactive role than ever before. This "quality assurance" model is reflected in the SRA's publication policy, which will see the terms of all Agreements published (unless agreed otherwise) along with details of reprimands and/or severe reprimands. Practitioners who break the rules can no longer expect a slapped wrist behind closed doors, and must now be prepared to accept penalties for their errors in full view of the public.
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