7 February 2019
Competence and Standard of Service
This guidance focuses on our approach to investigating individuals and firms when the level of competence and standard of service falls below what we would expect.
Matters of poor service are generally investigated by the Legal Ombudsman (LeO). They are able to take certain action we cannot – for example, award compensation, reduce a bill or make a solicitor or firm take a specific course of action in relation to a matter.
Further, we will not consider mere negligence to be a regulatory matter, and this is normally dealt with by the courts.
However, negligent acts and omissions that are particularly serious may indicate a serious failure by a regulated person. This could be:
- not acting within the boundaries of their competence
- not acting in the best interests of their client
- not providing a proper standard of service (for which, meeting the competences set out in our Competence Statement - made up of a statement of solicitor competence, threshold standard and statement of legal knowledge - is an integral part).
Further, the Code of Conduct requires both individuals and firms to keep themselves and those working for them up-to-date and fit to practise, and to supervise work effectively.
So therefore, notwithstanding any involvement of LeO or the courts, we will investigate competence or service issues where these are particularly grave or suggest multiple failures or repeat or persistent poor conduct.
Common aggravating and mitigating features
|Mitigating features||Aggravating features|
|The matter solely relates to a poor outcome, or a genuine mistake||The regulated person knowingly or recklessly acted outside their competence|
|Client informed about the matters that have gone wrong, and the potential consequences and advised to take independent legal advice||Failure to handle complaint in a manner that is open, fair and free of cost, and/or to inform clients of right to complain to LeO|
|The client, the court or a third party has been misled about something that has gone wrong|
|The firm or individual puts their own interest in limiting their liability above the best interests of the client|
|There has been minimal impact on clients or third parties||The impact on clients or third parties is high|
|It is an isolated incident||It is a regular failure demonstrating a pattern of behaviour|
|There is a failure to co-operate with the LeO, SRA or other investigations or inquiries into the events|
|Robust systems of supervision of work||There is a failure to properly supervise work|
|The person has reflected on development and training needs and undertaken – or implemented – appropriate continuing professional development activities||The person has failed to consider or address training and development needs.|
|Steps have been taken to put matters right and to ensure likelihood of repetition is low||Failure to take appropriate steps to put matters right or reduce likelihood of repetition|
Indicative sanctions guidelines
We generally do not act where someone makes a genuine mistake. We want to encourage a culture of learning from mistakes and improving standards.
Strong mitigating factors will generally result in us engaging with firms and individuals to improve standards. This may involve:
- agreeing or imposing conditions or controls to prevent the individual or firm from providing certain services, if we do not consider they can do so safely and effectively
- making sure that appropriate training, remediation or systems of supervision are put in place.
We will impose serious sanctions where the misconduct involves aggravating features, such as where:
- the person has acted knowingly or recklessly outside the boundaries of their competence
- serious harm has arisen from the person's action which would tend to undermine public confidence in the profession
- action has been take to cover up a problem, or a client or third party has been misled
- the person has shown a failure to address clear training and development needs
- a firm or individual puts their interests above their clients'
- the concerning conduct or behaviour is repeated or persistent.