Publishing regulatory and disciplinary decisions

Introduction

Purpose and scope of this guidance

This document provides guidance for those considering whether to publish regulatory decisions on our website.

This guidance should be read in the context of decision making at the SRA and other guidance documents. It is a living document and will be reviewed and updated as appropriate. It reflects our approach to our regulatory role and any departure must be capable of justification on the individual facts of the case.

Decisions that may be published

We make a wide range of regulatory and disciplinary decisions. We have a statutory power to publish fines and rebukes.1 We also publish other information about our work and key decisions where we consider it is in the public interest for us to do so, such as the status of our ongoing investigations. And, for example, decisions to intervene have long been published as an essential part of informing clients that their law firm has been closed down. Similarly, cases before the Solicitors Disciplinary Tribunal (SDT) are generally heard in public.

Decisions that we publish include, but are not limited to:

  • fines and rebukes – in accordance with the criteria set out in the SRA (Disciplinary Procedure) Rules2
  • controls, such as conditions on practising certificates or on the authorisation of firms which we regulate
  • issue of proceedings before the Solicitors Disciplinary Tribunal (SDT) in general, once the SDT has certified there is a case to answer
  • Regulatory Settlement Agreements - (Read RSA guidance)
  • intervention decisions
  • revocation of a firm's authorisation
  • approval of employment of people who are subject to section 43 of the Solicitors Act 1974 or struck off or suspended solicitors, under s41 of the Solicitors Act 1974
  • refusal to issue a practising certificate.

Generally we expect that these decisions will be published unless we consider that one or more of the factors below would make such publication inappropriate. Each decision to publish will be taken on its own merits and we will take into account all of the relevant circumstances, including any representations made by the person who is subject of the decision and, where appropriate, other relevant third parties.

Why do we publish?

We act in the public interest and this includes providing appropriate protection for consumers and supporting the administration of justice and the rule of law. There is a public interest in being transparent about the decisions we make and why we have made them, in order to:

  • raise awareness amongst those we regulate about the action we have taken to improve understanding of our expectations, and deter them from action which would fall below standards or breach our requirements
  • ensure consumers and others, including prospective employers are able to access appropriate information:
    • to inform them about the closure of a firm as a result of an intervention
    • to enable them to make informed choices about whom to instruct or to employ
    • to decide whether behaviour of concern should be reported to us for action
     
  • ensure we are properly accountable to the public for the decisions we make and demonstrate that we are acting proportionately and consistently; and
  • maintain public confidence by demonstrating appropriate action is taken when things go wrong.

Example 1

We decide to intervene into a firm as we suspect dishonesty on the part of the managers. We publish the fact of the intervention on our website. The publication decision includes brief details for the reason for the intervention, as well as the contact details for the agents we have appointed so that clients can contact them to access their files or money.

When might publication not be appropriate?

We may decide not to publish a decision if we are satisfied that:

  • we would be unable to do so without:
    • disclosing someone's confidential or legally privileged information
    • disclosing someone's confidential medical condition or treatment
    • prejudicing other investigations or legal proceedings
     
  • in all the circumstances the impact of publication on the regulated person would be disproportionate. In particular, we need to consider Article 8 of the European Convention on Human Rights and balance the right to a private life with the legitimate aim of publication, as set out above.

These factors are not exhaustive and we will take into account all other factors that we consider to be relevant.

Example 2

We decide to fine a solicitor for a caution for a sexual offence, committed outside of practice. The solicitor has provided medical evidence which confirms that the stress of the publication of the fine will cause him to become a suicide risk. Taking these factors into account, we decide that publication is not in the public interest.

Other relevant issues

Nature of the publication

We will publish the decision on our website. We will usually publish a short statement of the decision with brief factual details, such as where the person is currently working or was previously working, and the reasons for the decision.

Regulatory Settlement Agreements will normally be published in full. The aim is to give the public sufficient information so they can understand the nature of and reason for the decision.

We will take reasonable steps to avoid the publication of information relating to other identifiable persons. Where it is necessary to refer to clients or colleagues their details will be appropriately anonymised.

Timing and length of publication

We will normally publish decisions promptly. In exceptional cases, we may publish the fact of a referral to the SDT prior to certification by the SDT if we consider it is in the public interest for us to do so.

Certain decisions we publish are appealable, such as fines and conditions. Generally, we will not publish such decisions during any appeal period and until any such appeal has been determined or withdrawn.

As it is important to let the clients of a firm we have intervened into know as soon as possible that that a firm has closed down, we will generally aim to publish such decisions immediately following the intervention. With the exception of intervention decisions, we will generally give the regulated person or firm the opportunity to comment in advance about whether the decision should be published. We will take their views in to account when making our decision whether to publish and will tell them what we have decided.

We may decide that it is not appropriate to publish the decision at the time it was made, for example, if this will risk prejudicing any ongoing proceedings, but we may then do so at a later date once those proceedings have concluded, or the risk is no longer material.

Generally, we will automatically remove decisions from our website three years after the date of publication, unless we consider that exceptionally it is not in the public interest for us to do so.

However, some publications such as section 43 orders or referrals to the SDT that result in a strike off or suspension of more than three years will remain on our website, until the period of the suspension has ended, or a successful application is made for the section 43 order, suspension or strike off to be lifted. This allows the public or other interested parties to find out important information on our website about individuals we regulate.

Example 3

We decide to issue proceedings against a solicitor at the SDT for allegations around significant misuse of client money and failure to comply with the Accounts Rules. After considering her representations, we decide that it is appropriate to publish the referral. We publish a brief summary of the allegations, making it clear on our website that the allegations have not yet been proven. At the subsequent SDT hearing, the solicitor is struck from the roll. We remove the allegations, confirming instead the sanction imposed by the SDT and including a link to the SDT’s website should anyone require access to the full judgment (normally available six-eight weeks after the decision). We do not remove the decision after three years so that a member of the public searching for that solicitor’s name on our website will be able to find out that they have been struck off by the SDT.

Review of publication

Decisions may be amended or removed from our website where we consider that publication is no longer necessary in the public interest, or to correct or update the information. We may decide to do this ourselves. For example, we will update the summary of allegations to be made at the SDT in a particular case when the SDT has agreed to make an amendment to those allegations and as a result the published summary is inaccurate.

If we are asked to remove a publication within the three year period because of new information or a change in circumstances, we will consider if this is appropriate. In doing so, we will have regard to all the circumstances and consider the request in line with the factors relating to the decision to publish set out above.