The SRA's publication policy
The Solicitors Regulation Authority’s (SRA) approach to publication of referrals to the Solicitors Disciplinary Tribunal (SDT) is set out in the SRA’s publication policy.
The policy states that referrals to the SDT may be published once it has certified a prima facie case.
Certification occurs before the solicitor is even aware that proceedings have been commenced. Under rule 6 of the Solicitors (Disciplinary Proceedings) Rules 2007, a solicitor member of the Tribunal will consider the SRA’s Rule 5 Statement (ie the SRA’s statement of case) after the proceedings have been lodged with the SDT and before service on the respondent to certify whether or not there is a prima facie case.
In practice, the SRA normally sends the respondent a letter stating that the SRA intends to publish the referral shortly after the Tribunal has certified that there is a prima facie case. That gives the respondent an opportunity to make written representations against publication. The representations are then considered when the SRA makes a decision under the policy.
Decision to publish
Section 8 of the policy states that the following factors support a decision to publish:
- The importance of transparency in the SRA’s decision-making process
- The importance of providing information about regulatory action against regulated persons to enable for example:
- clients or prospective clients to make informed choices about whom to instruct
- clients and others to decide whether behaviour of concern should be reported to the SRA
- The need to maintain public confidence in the provision of legal services by demonstrating what regulatory action is being or has been taken and why
- The circumstances leading to the regulatory and disciplinary decision are matters of legitimate public interest or arise from facts that may affect a number of clients or other persons or relate to the administration of justice
Decision not to publish
Section 9 of the policy states that the following factors support a decision not to publish:
- Inability to publish without:
- disclosing confidential or privileged information
- disclosing a confidential medical condition or treatment
- prejudicing legal proceedings or legal, regulatory or disciplinary investigations
- a significant risk of breaching someone’s Article 8 rights
- In all the circumstances the impact of publication on the regulated person would be disproportionate
Consequences of SRA publication
The SRA usually makes a decision to publish the referral, and the referral is then published on its website. The website has a high Google ranking and publication often has a harmful effect on a solicitor’s practice. That can seem particularly unfair because the adverse publicity occurs before the Tribunal has even reached a decision on the SRA’s allegations.
An SRA decision to publish can be challenged by judicial review. However, in practice, a solicitor will need a very good argument to obtain permission to apply for judicial review.
We are often instructed to make representations against publication and if you wish to obtain advice on representations against publication or judicial review of a publication decision please contact us.