Closed Consultation

As a legal regulator, we work to protect the public by ensuring solicitors meet high professional standards and through enforcing compliance against these standards. We are open and transparent about the work we do. Where we act against a regulated individual or an authorised body, we believe it is in the public interest to publish that decision.

Purpose of publication

We consider that the purposes for publishing regulatory decisions include:

• Making sure that we are transparent and properly accountable to the public and the profession for the decisions we make, and showing that we are acting proportionately and consistently
• Providing appropriate protection for the public, for example so employers and clients are aware if a solicitor has been struck off or has restrictions on their right to practice
• Maintaining standards so people and the profession understand what is and is not acceptable conduct from a solicitor and why. This helps raise awareness in the profession of appropriate conduct and the consequences for failure to comply, and raise awareness among consumers of what standards and behaviour they should be entitled to expect. This also helps people to decide whether to report concerns to us for action.
• Upholding public confidence in the profession by demonstrating that the profession is regulated appropriately, and that action is taken to protect against harms and potential risks.

Reviewing our approach to publication of regulatory decisions

Our current approach to publishing regulatory decisions was implemented in 2007. We have not carried out a wholesale review of this approach since then, nor sought the views of the public, profession and other stakeholders. Given the length of time since we last consulted, we think it is the right time to test with stakeholders their views about whether our approach remains fit for purpose or whether changes are needed.

We are approaching this exercise openly. We have not reached a view on what the likely outcome might be. However, we recognise that much has changed in the last 15 years. We live in a more digitally-focused and data-driven world with increasing expectations about decision making in the public domain. And being more transparent with decisions being easily and digitally accessible.

We have updated the method and types of data we publish in recent years. Details of individuals and firms we regulate, including regulatory and disciplinary records, are now published through the Solicitors Register and ‘Check a Solicitor’ functions on our website, as well as the consumer-facing Legal Choices Information on the register can also be accessed through other digital platforms such as Google search. These developments help the public, the profession and others to easily check a solicitor's regulatory and disciplinary record. And to see what action we take in relation to different types of breaches in different circumstances.

There is also more online commentary about decisions, beyond officially-published information and we increasingly find that the right to be forgotten is limited, with information remaining online for periods that far exceed our official publication length.

Against this backdrop, and our commitment to being a transparent and accountable regulator, we are seeking views on our principles for publishing regulatory decisions. And in particular on four key areas: what we publish, the timing of publication, the length of publication and how much information we provide in any publication.

Crucial to determining our approach will be understanding how our distinct stakeholder groups, including both the public and the profession, value and use the information we publish and their expectations about what information should be available. This is likely to vary between different groups. For instance, law firms often look at our decisions to check the record of a potential employee, while the public will often look at it to inform a decision as to whether they should use a particular solicitor. Both firms and the public will also turn to us as an authoritative source to check information on regulatory decisions they have read about elsewhere, such as in the media.

Therefore we invite views from a diverse range of stakeholders on the principles and approach to publishing regulatory decisions.

Our current approach

The approach to publication of regulatory decisions we currently follow is described in detail in the sections below. It can be summarised as follows:

• We publish our regulatory and disciplinary decisions except in exceptional circumstances such as where it is not in the public interest to do so and where impact on the regulated individual would be disproportionate
• We remove most decisions from our website three years after the date of publication of the However, sometimes we apply different time periods for publication. For example, Section 43 orders, where we can prevent firms from employing a person who is not a solicitor, or decisions by the independent Solicitors Disciplinary Tribunal (SDT) to strike off or suspend a solicitor are published for more than three years. These decisions will remain published until the suspension has ended, or a successful application is made for the Section 43 order, suspension to be lifted, or the solicitor applies for restoration to the roll.
• We publish regulatory and disciplinary decisions promptly subject to our rules, which make provision for external appeals. When we decide to publish a decision, we will normally wait 28 days for the regulated person to lodge a review of the decision and we will publish promptly at that point if there is no request. Where a decision has been reviewed, we will not publish until the review has been determined or withdrawn.
• The detail we publish should give the public the information they need to understand the nature of and reason for the decision while taking reasonable steps to avoid publication of information that is not in the public interest.
• We publish the decision on our website, via the Solicitors Register, Check a Solicitor's Record, and on the recent decisions page.
• Decisions may be amended or removed where we consider that publication is no longer necessary in the public interest, or to correct or update the information.

We make many decisions in the course of our disciplinary work. These decisions are made under our Regulatory and Disciplinary Procedure Rules which make clear that we will publish such decisions on our website, although there are some exceptions (See Annex 1).

The types of regulatory and disciplinary decisions we publish include:

• Authorisations and controls on practice
• Suspensions, for example, of a solicitor's practising certificate or a body's authorisation
• Disciplinary outcomes made by the SRA such as:
  • a written rebuke
  • payment of a financial penalty
  • disqualification of a person from acting as a HOLP or HOFA manager or employee of a body licensed under (section 99 of the LSA)
  • an order to control the person's activities in connection with legal practice (section 43(2) of the SA)
  • a condition on the practising certificate of a solicitor, the registration of an REL or RFL or the authorisation of a body
  • revocation or suspension of authorisation to practise under the SRA Authorisation of Firms Rules, the exercise of our powers of intervention
  • 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.

In some instances, we do not make a final decision, but refer alleged non-compliance to the SDT. The tribunal is independent from the SRA, with its own powers and procedures. However, we will publish our decision to make an application to the SDT and we publish, via a link, the decisions made by the SDT.

We are also required under the Legal Services Act 2007, c.29 Part 5, to publish all sanctions and disqualification action taken against firms that allow non-lawyer ownership and management of businesses delivering regulated legal services (licensed as an alternative business structures (ABSs).

Furthermore, we can seek to put interim conditions on practice, or intervene into a firm, ahead of any final decisions on misconduct, where there is an immediate risk to the public. We also publish these decisions.

We consider that the following principles might be helpful to underpin our approach to publication:

• The presumption of open justice is paramount, and we will publish information relevant to understanding the nature of a regulatory decision and why it was reached, unless there is a good reason not to.
• We are transparent and accountable to the public and the profession for the decisions that we make and will promptly publish and disclose any information related to regulatory decisions or arising from investigations where it is in the public interest to do so.
• Through transparency of our regulatory decision making, the profession is informed of and encouraged to uphold the highest professional standards.
• To maintain transparency where matters are sensitive or confidential, we will seek to redact or reduce information rather than to remove decisions entirely.

Questions

1. Do you agree that publication of regulatory decisions helps to raise awareness in the profession of appropriate conduct and the consequences for failure to comply? (Strongly Agree, Agree, Don’t Know, Disagree, Strongly Disagree)
2. Do you agree that the publication of regulatory decisions is important to help raise awareness among consumers of what they should be entitled to expect? (Strongly Agree, Agree, Don’t Know, Disagree, Strongly Disagree)
3. Do you think that principles outlined provide a good framework for our approach to publication of regulatory decisions? (YES/NO)
   • Please explain your answer (Free text)
4. Are there any other principles and considerations on publication of our regulatory decisions that we should consider? (YES/NO)
   • If YES, please explain (Free text)

Annex 1 shows the types of decisions we publish and explains how they are presented in different ways and with differing amounts of context and detail. For example, some decisions (eg controls, closures etc) include a short statement of facts. While other decisions, (eg financial penalties) provide a more detailed summary of why the decision is the appropriate outcome. Our approach has developed over time, aiming to provide enough information for the profession and consumers to understand the nature of the decision.

We have set out above what we consider the purposes of publishing regulatory decisions are and proposed a set of principles to underpin our approach. Crucial to this is allowing employers and clients being aware of the regulatory status of a solicitor. However, it goes beyond this, a key purpose is also to make sure that we are transparent and properly accountable to the public and those that we regulate for the decisions we make.

In order to be accountable, we need to make sure that the level of information we publish is proportionate and consistent so both the public and the profession understand what is and is not acceptable conduct from a solicitor and why, and that we can uphold confidence in the provision of legal services and ensure that the people we regulate know what is expected of them.

However, we want to hear from different stakeholders about the purpose for which they may wish to access information about our regulatory decisions for, the type of information and the level of detail that they would find useful for these purposes. We appreciate that this might be different for different groups.

In our recent work on the financial penalties consultation, we heard views from some parts of the profession that they would like more information about the regulatory decisions we make and, indeed, for all decisions to be published in full. This included a call for the publication of the full details of the facts of the case, any arguments raised by both us and respondents, and reporting of mitigating circumstances that would aid transparency and precedent setting.

However, it may also be argued that too much detail of a technical nature may make the information less accessible for some, particularly members of the public, so could hamper transparency.

Our aim is to make sure that that disciplinary information we publish provides the right amount of information for its audiences to understand the decisions we have made and why.

We therefore think it would be beneficial to explore this with stakeholders to better understand the type of information and detail that they would find helpful for their own purposes – we expect varied views and we are particularly keen to hear how members of the public and those in the profession use the information we publish to help inform our next steps.

Questions

5. What types of regulatory information do you currently access and for what purpose? (FREE TEXT)
6. Do you think we should publish more or less detail on the regulatory decisions we make? Multiple Choice
   • More Information
   • The Same
   • Less Information
     • Please explain your answer including whether you have different views in relation to different types of decision? (Free Text)
7. How else could we better improve the regulatory information we publish to support the profession? (Free text)
8. How else could we better improve the regulatory information we publish to support the public? (Free text)

Our purpose and principles uphold the primacy of open justice. This means that we strive to maintain transparency even where matters are sensitive or confidential, for example, by seeking to redact or reduce information rather than to withhold or remove decisions from publication entirely – in that way, balancing the public interest with the rights of respondents. The case of SRA v Spector [2016] 4 WLF 16 at [26], provides useful context to the presumption of open justice.

In certain circumstances, we might be unable to publish certain decisions in full without disclosing someone’s confidential or legally privileged information, or information that might prejudice other investigations or legal proceedings. In these circumstances, we would first consider publishing the decision but redacting the relevant information.

However, in some exceptional circumstances, we might also withhold publishing a decision, if we conclude that it would have a disproportionate impact on the regulated individual who is the subject of the decision. We consider any representation made by the person subject to the decisions or relevant third parties in making decisions.

While we consider that this should only be in the most exceptional circumstances, we would like to seek views about particular circumstances that might make it disproportionate to publish a decision.

Like many regulators, we most commonly make decisions not to publish decisions where evidence is provided that publication could have a significant and detrimental impact on health, risk to life, or safety. Below are some examples where we would decide not to publish.

Example 1

A paralegal/trainee was found to have misled their employer and we imposed a financial penalty as a result. Representations and medical evidence from the individual’s GP demonstrated that they were suffering from severe depression, had attempted suicide, and were having twice-weekly consultations with a suicide prevention officer. We considered concerns that publication would enhance the suicide risk and concluded that publication would be disproportionate.

Example 2

In an investigation of dishonesty against a senior conveyancing executive, we found that the subject was at risk from a violent and abusive spouse, that the dishonesty was due to threats to the subject and that their children were being safeguarded. The subject also made representations that they were suffering from medical post-traumatic stress disorder, severe anxiety disorder and depression. We concluded that publication would be disproportionate in all the circumstances.

Example 3

A solicitor was subject of an investigation for making inappropriate comments on social media. We found that the comments were made in response to a four-year period of harassment and menacing communications made by the spouse of someone subject to enforcement proceedings which had been conducted by the subject. The spouse of the person subject to the proceedings had a conviction for harassment of a police officer and there was other evidence of their intimidating behaviour. The subject individual accepted that they had breached our rules, but we concluded that publication of our regulatory decision would likely reignite the hostility experienced by the subject individual. We reasoned that the individual has the right to a private life, and that publishing our decision would be disproportionate in all the circumstances.

Example 4

A solicitor involved in a road traffic incident was convicted of driving under the influence of alcohol and was subsequently disqualified from driving. The solicitor notified us of their conviction and agreed to pay a financial penalty. We decided not to publish the regulatory settlement agreement (RSA) as we deemed that this would have a disproportionate adverse impact on the individual and their young children. Through the course of our investigation, the individual’s psychologist disclosed that they had previously attempted suicide. We also recognised that the individual did not provide legal services to the public. It therefore followed that the public interest in publishing this RSA was more limited than in many other cases and in reference to Article 8 of the Human Rights Act 1998 and consideration of a professional psychologist assessment, we concluded that the likely impact of publication of our decision outweighed the public interest.

At present we would be unlikely not to publish on the basis of loss of income and custom or potential impact on staff (such as redundancies etc), or because of embarrassment or possible character taint.

We are open to views on exemption of publication and are keen to understand this from the perspective of the profession, the public and other key stakeholders. And that there may be differing views on how we balance public protection with the rights of those we regulate. We are conscious that the examples we have provided about when we may exempt might seem relatively uncontentious and we would welcome views on any other circumstances which mean that we should not publish, particularly where there may not be such clear risk to health, life or safety.

Questions

9. Is our current approach to balancing the public interest and principles of open justice with protecting the respondent’s well-being, fair and proportionate?  (Strongly agree, agree, unsure, disagree, strongly disagree)
10. Are there any circumstances where you think the principles of open justice outweigh the rights of the respondent (YES/NO)
    • If YES, please explain: (Free Text)
11. Are there any circumstances where you think the right of the respondent outweighs the principles of open justice? (YES/NO)
    • If, YES, please explain: (Free text)
12. Do you have any other views on this topic that you would like to share (Free Text)

One of our proposed principles is to promptly publish and disclose any information related to regulatory decisions or arising from investigations where it is in the public interest to do so.

At present we will publish information promptly when a matter is closed, or a final decision taken. In some instances, where we consider that there is an immediate risk to the public, we can seek to place interim conditions on practice, or intervene into a firm, ahead of any final decisions. We will publish details of these interim protections.

We do not, however, routinely publish details of ongoing investigations. Nor do we publish decisions before any review period has expired or been determined or withdrawn. This is because many investigations lead to a closure with no further action, and decisions are occasionally reversed following the appeal period. Therefore, there is a strong argument that it would be unfair to the regulated individual to publish allegations that have not yet been fully tested.

Our rules do allow us to publish details regarding ongoing investigations, where we determine it is in the public interest to do so. For example, we might consider a high-profile matter and where there were suggestions of incorrect information being published in the public domain. We might also provide relevant information where third parties are directly affected by the matter.

Example

A high-profile case where a government inquiry leads to allegations that a firm has knowingly destroyed crucial evidence. Due to the high level of political and public interest in the inquiry and the potential high risk to the public, we decide to publish updates on the ongoing detail of the investigation outside of our normal process.

We want to explore views on the timing of the publication of our regulatory decisions. Is it right that we do not routinely publish details of on-going investigations? Are there any specific circumstances where we should adopt a different position? We are mindful of the impacts on those we regulate, and we expect some stakeholders might prefer that we withhold publication of our decisions until the matter has concluded, while others might prefer we publicise details of our investigations early on to provide greater transparency.

We are also particularly interested in our approach in relations to decisions to refer a matter for prosecution before the SDT, we currently wait until the SDT has certified that the case should be heard before publishing a summary of the allegations on our website, making it clear that the allegations have not yet been proven.

However, we notify the respondent, witnesses and other interested parties of our decision to refer to the SDT before certification. This might give rise to a risk of impartial or incomplete information about a case being released into the public domain before the case is certified by the SDT and the formal account of the matter is published by us. 

Although certification is not a rubber-stamping exercise, cases are rarely rejected by the SDT with less than five not certified in the last three years. These are normally due to technical errors.

We would therefore welcome views about whether there is a case for us to publish the decision to refer to the SDT at the point of the referral rather than certification. If this were the position, should the tribunal decide that no further action should be taken, we would update the public record promptly.

Questions

13. Do you think that our current approach to timing of publication of our decisions requires change? (YES/NO)
    • If YES, please explain why?
14. In what circumstances do you think details of regulatory action and/or decisions should be published earlier? 
15. What are you view about at what point we should publish referrals to the SDT? 
16. Do you have any further views on the timing of publication of our regulatory decisions? 

We publish a range of regulatory decisions for varied lengths of time. In the 15 years since we developed our approach, the increased use of digital technology and greater interest in transparency and consumer choice informed by better quality information means that we think it is now time to explore views on the length of time that regulatory information is made available. We are open to different views, rationale and argument about the length of publication for different types of decisions.

Annex 1 sets out the current range of regulatory decision types and publication lengths. More than half of the types of decision we make are published for three years from the point at which the decision is published, with restrictions on practice being published for at least the duration of the restriction. We may, in exceptional cases decide it is in the public interest to vary this length and there are several types of decision with different publication lengths.

Where we have removed regulatory information from our website, this can still be made available on request to third parties where they have a legitimate interest. This might include requests from prospective employers or other regulators. However, the information is not available to a passing visitor to the website. Our approach to dealing with disclosure of information is found on our website. We also have guidance for how decisions on disclosure are made and some examples of the most common types of disclosure requests.

At a time where we consider there to be an increasing use of search platforms by the public to choose and check the regulatory record of a solicitor, we are concerned that information available from third-party sources (such as a search engine) might be incomplete or lacking context long after the official record has been removed. We want to explore whether you think there are benefits to both the public and the profession in adjusting the publication length of our regulatory decisions.

We have seen other regulators exploring ‘tiered publication’ for different lengths of time based on the seriousness of the sanction the issue. We know that some regulators implement some level of tiering of their publication lengths, for example CILEX Regulation. Some publish reprimands for one year, fines for three years and strike offs, suspensions, and conditions until they are lifted. The Bar Standards Board (BSB) publishes a period of suspension under 12 months for three years, but for a suspension of over 12 months, the publication is for 5 years. The BSB has also recently decreased its publication periods for fines to two years.

We expect that some might argue that all regulatory decisions should be made available for longer than three years, while others may think that all decisions should be removed after a fixed period of time. We are open to hearing the different views from our stakeholders.

Questions

17. Do you think there are benefits to extending or shortening the length of publication of regulatory decisions? (YES/NO)
    • Please explain your answer and provide details (Free text)
18. Do you think it might be beneficial to link the length of publication to the level of severity of the regulatory decision? (YES/NO)
    • Please explain your answer (Free text)
19. Do you have any further views which we should take into account in relation to the length of publication for our decisions? (Free text)

1. Do you agree that publication of regulatory decisions helps to raise awareness in the profession of appropriate conduct and the consequences for failure to comply?
   • Strongly Agree
   • Agree
   • Don’t Know
   • Disagree
   • Strongly Disagree
2. Do you agree that the publication of regulatory decisions is important to help raise awareness among consumers of what they should be entitled to expect?
   • Strongly Agree
   • Agree
   • Don't Know
   • Disagree
   • Strongly Disagree
3. Do you think that principles outlined provide a good framework for our approach to publication of regulatory decisions?  (YES/NO)

   • Please explain your answer (Free text)

4. Are there any other principles and considerations on publication of our regulatory decisions that we should consider? (YES/NO)

   • If YES, please explain (Free text)

5. What types of regulatory information do you currently access and for what purpose? (Free text)
6. Do you think we should publish more or less detail on the regulatory decisions we make? Multiple Choice
   • More Information
   • The Same
   • Less Information
   • Please explain your answer including whether you have different views in relation to different types of decision? (Free Text)
7. How else could we better improve the regulatory information we publish to support the profession? (Free text)
8. How else could we better improve the regulatory information we publish to support the public? (Free text)
9. Is our current approach to balancing the public interest and principles of open justice with protecting the respondent's well-being, fair and proportionate?
   • Strongly Agree
   • Agree
   • Don’t Know
   • Disagree
   • Strongly Disagree
10. Are there any circumstances where you think the principles of open justice outweigh the rights of the respondent (YES/NO)

    • If YES, please explain: (Free text)

11. Are there any circumstances where you think the right of the respondent outweighs the principles of open justice? (YES/NO)

    • If YES, please explain: (Free text)

12. Do you have any other views on this topic that you would like to share (Free Text)
13. Do you think that our current approach to timing of publication of our decisions requires change? (YES/NO)

    • If YES, please explain why (Free text)

14. In what circumstances do you think details of regulatory action and/or decisions should be published earlier? (Free Text)
15. What are you view about at what point we should publish referrals to the SDT? (Free Text)
16. Do you have any further views on the timing of publication of our regulatory decisions? (Free Text)
17. Do you think there are benefits to extending or shortening the length of publication of regulatory decisions? (YES/NO)

    • Please explain your answer and provide details (Free text)

18. Do you think it might be beneficial to link the length of publication to the level of severity of the regulatory decision? (YES/NO)

    • Please explain your answer (Free text)

19. Do you have any further views which we should take into account in relation to the length of publication for our decisions? (Free text)

Decision type	Publication	Current Length of Publication
Open an Investigation	No
Interventions	Yes - short statement of the decision with brief factual details	3 Years from when decision is published
Regulatory settlement agreements	Yes – published in full	3 Years from when decision is published
SRA Sanctions - fines/rebukes	Yes - short statement of the decision with brief factual details	3 Years from when decision is published
SDT referrals	Yes – short statement of the decision with noting that tribunal have certified there is/was a case to answer. Include link to SDT judgement	3 Years from when decision is published
Tribunal judgments resulting in a strike off, indefinite suspension or revocation of authorisation of a firm	Link to SDT judgement and follows SDT publication policy	Indefinitely or subject to a successful application for removal/redaction of the judgment
SDT suspension for a fixed period	We will link to SDT judgement and follows SDT publication policy – we will publish until the suspension has ended, or there has been a successful application to be lifted, or there has been a successful application for restoration to the roll	life of the suspension or 3 years (whichever is the greater)
SDT restriction order	Link to SDT judgement and follows SDT publication policy	life of the sanction or 3 years (whichever is the greater)
Disqualify a non-authorised person in an Alternative Business Structure – (S99)	Yes (mandatory) - Also published on the LSB register	Indefinitely, or until disqualification lifted
Control of non-qualified staff (section 43 order)	Yes – Full outcome details	Indefinitely, or until disqualification lifted
SDT Section 43 The order allows us to regulate any non-qualified persons working in a law firm. A person subject to Section 43 Order is prevented from being employed by an SRA-authorised firm without the express permission of the regulator.	Yes - short statement of the SDT decision with brief factual details.	Indefinitely, or a time as the Section 43 Order is revoked
Refusal to grant practicing certificate registration	Yes - short statement of the decision with brief factual details	3 Years from the point of the decision
Practicing certificate conditions	Yes - short statement of the decision with brief factual details	Published on our website for a minimum of 3 years when issued (even when the condition is removed before that time). We then might issue and publish consecutive decisions on an annual basis
Recognition of practicing certificate free from conditions	Yes - short statement of the decision with brief factual details	Published for 1 Year at the point of decision– or until the annual renewal of the practice certificate (1 year). Whichever is sooner
Withdraw approval of non-lawyer manager (non-lawyers are allowed to be managers or owners of firms we regulate, subject to SRA approval)	Yes – when we decide to withdraw approval, we will issue a short statement of the decision with brief factual details	3 Years from the point that we decide to withdraw approval
Suspend authorisation to practise (Individual non SDT) (This means the person is not entitled to practise as a solicitor while their suspension continues)	Yes – at the point of decision to withdraw authorisation, we issue a short statement of the decision with brief factual details e.g. bankruptcy	3 Years from the decision or the length of suspension, whichever is sooner
Termination of suspension (Where the practising certificate of solicitor is suspended, they can apply to have the suspension lifted.)	Yes – at the point of our decision to lift the suspension, we will publish a short statement of the decision with brief factual details	3 Years from the point of decision
Section 41 permission to employ a struck off solicitor	No – if refused Yes – if permission granted with any conditions to the employment	3 Years from the point of decision
Section 43 – permission to employ	No – if refused Yes – if permission granted with any conditions to the employment	3 Years from the point of decision
Authorisation revoked	Yes	3 Years from the point of decision
Refusal of period of recognised training	No
Refusal of admission to the roll	No
Equivalent Means/Qualified Lawyers Transfer Scheme (QLTS) applications	No – if refused No – if granted
Authorisation of a recognised body	No – if refused No – if authorised No – if conditions
Authorisation of a licensed body	No – if refused No – if authorised No – if conditions
Material interest holders of licensed bodies	No – if refused No – if authorised No – if conditions
Revocation of authorisation - firm	No – if refused No – if authorised
Approval of COLP/COFA	No – if refused No – if authorised
Decisions on compensation fund applications	No