In this series of news alerts, our regulatory and professional discipline partner, Andrew Pavlovic, identifies three key regulatory trends of which firms and solicitors need to be aware in 2022. In this second alert, Andrew Pavlovic considers the SRA’s treatment of junior solicitors and how their shift may now be focussing on cultural issues at law firms.
There has been growing disquiet in the legal profession about the SRA’s treatment of junior solicitors who commit acts of dishonesty in circumstances where they are under considerable workplace pressure and/or are suffering from mental ill-health. However, the position established by case law remains that, to preserve the standing of the profession, solicitors found to have acted dishonestly will be struck off the roll of solicitors unless there are exceptional circumstances as to why this should not be the case.
The issue was illustrated by the case of Clare Matthews, who was struck off the roll in 2020, following her loss of a briefcase containing confidential client information. The Tribunal found that Ms Matthews had acted dishonestly by delaying in reporting and/or temporarily concealing the loss of the briefcase. Ms Matthews represented herself before the Tribunal. Despite raising the issue of her mental ill-health during the Tribunal proceedings, the Tribunal proceeded on the basis that Ms Matthews had failed to put forward any medical evidence substantiating her medical condition at the relevant time and that, accordingly, there were no exceptional circumstances that would prevent the usual sanction of a strike-off.
Ms Matthews appealed the decision. It is understood that, as part of the appeal, Ms Matthews’ legal team (acting on a pro bono basis) produced medical evidence demonstrating her medical condition at the relevant time. In March 2021, the SRA agreed to compromise the appeal, agreeing that the case should be remitted to the Tribunal for a re-hearing. At that re-hearing, it is presumed that Ms Matthews’ legal team will argue that her medical condition amounts to an exceptional circumstance and that, accordingly, a sanction other than a strike-off would be appropriate.
Mental health remains a significant issue in the legal profession. In a recent survey of legal professionals carried out by Legal Sector Workers United, 71% of respondents indicated that their job had a negative impact on their mental health, with 69% of respondents describing themselves as “suffering from poor mental health”. Arguably of more concern, was the fact that 72% of respondents said that they would not feel comfortable asking for time off for mental health reasons, with 54% of respondents believing that disclosing mental health concerns would impede their career progression.
Law firms are increasingly recognising the need to focus on mental health, with a number of firms signing up to the Mindful Business Charter in 2021, introducing training and support to staff, and participating in various initiatives. However, the results of the survey suggest that there is still a considerable amount of work to be done. The SRA’s enforcement strategy states that they will take action against firms where events demonstrate a failure relating to the firm’s culture, systems, supervision arrangements, or processes, and many solicitors would welcome a shift by the SRA to looking at firms that cultivate an atmosphere in which solicitors are overworked and fearful to admit to errors.
The SRA could also assist by introducing a ‘fitness to practice’ regime, enabling cases against junior solicitors involving mental health issues to be dealt with in a way that puts an emphasis on their mental condition, rather than punishing them for regulatory breaches committed whilst suffering from that condition. The SRA is empowered under the Legal Services Act 2007 to introduce such a regime but has, so far, failed to do so, despite being encouraged to do so by the Solicitors Disciplinary Tribunal in 2019.
If you have any questions arising from this alert, or for any other regulatory queries, please contact our Partner, Andrew Pavlovic, who specialises in regulatory and professional discipline issues for law firms and partners, high-net-worth individuals, companies, charities and regulators.
Read Part 1: SRA Investigations into Personal Misconduct here.
Andrew Pavlovic is recognised by Legal 500 UK 2021 & 2022 as a ‘Rising Star’ in the field of professional discipline, and has substantial regulatory experience, having previously acted for the Solicitors Regulation Authority over several years in complex disciplinary proceedings and subsequent appeals.
Read our Partnership and LLP Law Practice Booklet and Annual Review here.