Thursday, March 14, 2019

Reporting Serious Misconduct

The new rules requiring individuals/firms to report serious misconduct have been published by the SRA

You can find the new rules here - https://www.sra.org.uk/sra/news/press/enforcement-strategy.page

Reporting to regulators will always place individuals and firms in a 'rock and a hard place' position, especially when the consequences could impact on the future commercial viability of the firm and the careers of individuals.

Recent press articles have shown the issues that can be encountered when reporting serious misconduct, including a newly qualified solicitor who was struck off for failing to report her firm when she was a trainee solicitor; she was pressured and bullied into acting unethically by her partners, who were also struck off. Many have said that the approach taken by regulators, whether right or wrong, could drive future bad behaviour underground.

No one can condone serious misconduct but much of the feedback from the profession clearly shows that regulators need to take account of mitigating circumstances where junior staff have been bullied and harassed by senior members of staff.

Hopefully the recent cases reported will lead to regulators providing further clarity on how and when whistleblowing should take place in such circumstances, and the protections, if any, that will be afforded to those making the reports.

It will be interesting to see how the new SRA Standard 7.10 works; it says:

“Any obligation under this section or otherwise to notify, or provide information to, the SRA will be satisfied if you provide information to your firm's COLP or COFA, as and where appropriate, on the understanding that they will do so”.

Advice has been sought from the SRA over whether Standard 7.10 completes the requirement to report, or whether if it is the COLP/COFA that has committed the misconduct (as was the case with the solicitor above) the person making the report (reporter) will have to make a judgement call over whether the COLP/COFA will not want to report themselves, and whether the reporter will therefore have to make a report direct to the SRA; we will let you know when we get any clarity on this point.

Author: Brian Rogers