Getting it right when things go wrong: Enforcing professional standards Juliet Oliver, General Counsel DASLS Regulation and Compliance Conference 14 March 2018

Aim to cover The SRA Handbook reforms A new approach to enforcement Enforcement in practice: guidance and case studies

Regulating in the public interest The purpose of our regulation is to: protect consumers of legal services; and support the operation of the rule of law and the proper administration of justice. SRA Policy Statement, November 2015

What are we trying to achieve? “The continuation of any existing regulatory intervention needs to be justified” “Solicitors have the freedom to work on their own or within a wide range of businesses, whether regulated by the SRA or not, and that where they do so they are bound by a very clear set of personal obligations based on the LSA professional principles” “SRA regulated entities have wide freedom, as permitted by statute, to structure themselves in ways that make sense for their businesses and their clients

What have we achieved? Current Handbook > 400 pages New Handbook ≈ 100 pages Reduce rules and make them clearer

What have we achieved?

Phase 2 Consultation closed December 2017 Including Authorisation and Disciplinary procedures and Character and Suitability test Continues drafting approach: Clear, concise and purposive Facilitates modern and future ways of working Board decision Spring/Summer – to be implemented together with Phase 1, not before beginning 2019 Separate consultations on Consumer Protection, Better information, and Solicitors Qualifying Examination

Reporting obligations Current code - O10.3 notify us of your serious failure to comply; O10.4 notify us of serious misconduct of others New Code - you must ensure that a prompt report to SRA is made of any serious breach of our regulatory arrangements

Reviewing our approach to enforcement Sought views on standards solicitors should meet Question of Trust campaign Ran September 2015 until January 2016 Formal consultation questions Voting on outcomes of lifelike scenarios: 5,400 members of the public and profession through events, online survey, postcards, twitter polls Published toolkit for use by firms

Question of Trust findings Views on conduct/behaviour Broad consensus over most serious issues: dishonesty, client money, criminality Non-solicitors found certain issues more serious: confidentiality and information security, competence Wide range of views in some areas: conduct in private life Common themes Intent/motivation, harm/risk of harm, insight/remediation, vulnerability, seniority/experience

Approach to Enforcement New Enforcement Strategy: Threshold for action Factors affecting seriousness Conduct in private life Action against firms/individuals Sanctions and controls table Guidance and toolkit of resources

Case study 1 Your firm’s email account has been hacked by a third party who contacted a number of clients impersonating a member of your firm, and took payment for services which were directed into the hands of the hacker. You have commissioned an independent report that concluded this was a sophisticated hack and that, whilst any system could be made safer, the protections in place were industry standard. You have refunded the money to the clients.

Case study 2 You are asked by your firm to negotiate a non-disclosure agreement, as part of a settlement paid to an associate following investigation of her complaint against a fellow partner of yours. Her complaint is that she had suffered sexual harassment from him on a number of occasions, including groping and sexual assault at a firm event.

Case study 3 A newly qualified solicitor is put in charge of a new client. His supervisor impresses on him that this is an extremely important client for the business. Under extreme pressure of work, he misses an important deadline and - in fear of the client finding out - backdates a letter suggesting that the advice was sent before the deadline. Does it make any difference if this was an unregulated or regulated firm?

Case study 4 You have a non-lawyer head of finance. She brings to your attention the fact that, for a period of 12-18 months, a series of payments to settle counsel’s fee notes amounting to £80,000 (for which money had been received from the clients) have not been made. This happened when the practice was migrating over to a new computer system and not all of the information was transferred. The computer error has been remedied and she plans immediately to pay the barristers, with interest.