The Solicitors Regulation Authority (SRA) was established in 2007 as an independent body responsible for regulating the 180,000 Solicitors in England and Wales. The SRA’s purpose is to protect the public by ensuring that Solicitors and those working for them meet very high standards. The key way that the SRA does this is by publishing and enforcing Principles for the profession and a Code of Conduct contained in the SRA Handbook. This month we will be considering the biggest change to the Handbook since it was introduced in 2011.
The SRA has acknowledged that the current Handbook is long (over 430 pages) and complex. Although there have been 21 updates to the Handbook since its introduction, these have not made the rules easier to understand. The intention with the new Handbook is to have a user-friendly set of rules, which will consist of two separate Codes of Conduct – one for Solicitors and one for firms. This will be a significant change in the approach to how Solicitors, their employees and firms are regulated. The hope is that by providing a new type of Handbook, the SRA will maintain high standards in the profession while facilitating innovation. Possibilities such as “Uberisation” of legal work have been discussed as the new rules will allow Solicitors to act as freelancers for the first time, in a way similar to Barristers. The thinking behind allowing Solicitors to advise in this way is to help more people access advice from qualified lawyers.
The SRA Principles are the fundamental rules of ethical behaviour that Solicitors are expected to uphold. These rules apply not just to Solicitors but to all individuals employed by a regulated firm. Where there is a conflict between different Principles, those which safeguard the wider public interest (such as maintaining public confidence in a trustworthy Solicitors’ profession) will take precedence over an individual client’s interests. So, for example, if a client instructed you to lie on their behalf, this might help their case but it would conflict with a Solicitor’s duty as an officer of the court. It would also undermine the public’s confidence in the legal profession. A Solicitor’s duty to the court will often outweigh their duty to a client.
In the new Handbook the number of Principles has been reduced from 10 to seven. These state that a Solicitor or their employee should:
1. uphold the rule of law and assist the administration of justice;
2. uphold public trust and confidence in the legal profession;
3. behave with independence;
4. be honest;
5. have integrity;
6. act in a way that encourages equality, diversity and inclusion; and
7. act in the best interests of each client.
Reducing the number of key Principles and drafting the rules in a much more economical way has made it easier to grasp the essence of the rules. Principles such as integrity, honesty and independence are not new to professional standards of behaviour, but there is more emphasis on these concepts being fundamental to legal practice. It is true that there will be many more gaps for interpretation, so it will be important to keep a careful eye on how the rules are used in practice. Material that has been removed from the Handbook generally involves duplication of rules, so the three Principles that have been taken out are already covered by the amended Handbook. There will now be one set of requirements to help make the Code easier to understand.
In the new Handbook there is also an emphasis on personal accountability for compliance. Individuals will be expected to justify their decisions and actions. A serious failure to meet the SRA standards may occur from a single incident or because of a persistent pattern of concerning behaviour. The types of breaches where a “one strike and you’re out” approach might be taken include unfairly discriminating by allowing your personal views to affect your professional judgement, abusing your position by taking unfair advantage of clients, or failing to perform any undertakings given.
The new SRA Handbook is not a radical departure from the previous version in terms of the standards. What is different is how the SRA and the legal profession will approach the rules. (And, of course, there’s also a reduction in page count, from 430 pages to 130!) With fewer prescriptive rules there will be wider discretion for individuals and firms. This new flexibility may make it easier for risky behaviour to crop up, but the underlying approach puts greater trust in a professional’s judgement.