Solicitors Regulation Authority’s Standards and Regulations-fair treatment and health

Chris Ratcliffe, Lecturer NTU https://www.ntu.ac.uk/staff-profiles/law/christopher-ratcliffe

If you blinked in April 2023, you may have missed the changes to the Solicitors Regulation Authority’s (‘SRA’) Standards and Regulations relating to fair treatment and solicitors’ health conditions.

The Consultation

The SRA regulates the solicitors’ profession. It provides rules which, amongst other things, governs ethical behaviour and expected standards of solicitors. A breach of these rules can result in regulatory action.

Back in March 2022, the SRA began a consultation on these changes, as follows:

(a) Informed by ‘some serious instances of people who work in law firms being treated unfairly and inappropriately’, proposals were made relating to rule amendments to be explicit about bullying, harassment and discrimination, and challenges to such behaviour, and

(b) Informed by ‘an increase in cases where a solicitor’s health issues impacted on their ability to practise safely or participate in disciplinary proceedings’, proposals were made relating to rule amendments. These amendments were to be explicit that any assessment of suitability to practise as a solicitor will include considering any health condition that could inhibit the ability to exercise legal or ethical judgement, and practise safely.

Views were invited on the regulatory and equality impact of the changes. There were fifty-nine responses, forty-one from individual solicitors who were generally supportive. However, organisations were generally opposed to, or raised questions about, the changes. Several subsequent meetings took place to examine these concerns, and the SRA pressed ahead with securing the Legal Services Board’s approval and, with one revision, the amendments came into effect in April 2023.

Arguably, such changes were unnecessary. The previous version of the rules was wide enough to cover the situations addressed. However, while the SRA thought it was necessary to be explicit that the Code of Conduct for Solicitors applied outside the workplace, salient information that had been buried away in the SRA Enforcement Strategy previously, these new rules provide clear expectations on the treatment of colleagues and disclosure of health conditions. They also forearm the SRA with unequivocal grounds for regulatory action in case of breach.

Wellbeing and Unfair Treatment at Work

In 2022 the SRA published the results of its ‘Workplace Culture’ review. More than 200 solicitors working in law firms were surveyed anonymously. Most reported a positive culture in their firms. However, a quarter felt their firm lacked a positive culture and raised concerns of

· Long working hours which were significantly outside of contractual hours,

· Pressures from clients and workloads, and levels of stress,

· Financial targets that ignored other achievements,

· Worries about raising issues of mental health and incidents of bullying behaviour.

For further details see, Workplace Culture Thematic Review, SRA, Executive Summary (8.2.2022). See also Rule changes on health and wellbeing at work: consultation, SRA, (4.3.2022).

The new rule 1.5 in the Code of Conduct for Solicitors provides that those who operate under the code must ‘treat colleagues fairly and with respect’ and ‘not bully, or harass them or discriminate unfairly against them’. The original proposal sought to place a duty on all who operate under the code to challenge such behaviour. Following the consultation, the SRA accepted that this may cause undue anxiety to some staff, particularly given that the code does not just apply to solicitors but to all employees, irrespective of their role, including junior employees. The new rule specifically, therefore, provides that managers have a duty to challenge behaviour that does not meet the standard expected.

Changes were also made to the Code of Conduct for Firms. The new rule 1.6 provides that firms must ‘treat those who work for and with [them] fairly and with respect, and not bully or harass them or discriminate unfairly against them.’ An additional duty on firms is to ensure that ‘employees meet this standard’.

Solicitors’ Health and Fitness to Practise

The proposed changes to the regulations in relation to solicitors’ health conditions was, understandably, more controversial.

The SRA Assessment of Character and Suitability Rules (C&S Rules) requires that all individuals applying for admission (or restoration) to the roll must be of ‘satisfactory character and suitability’. According to Rule 2.1 of the C&S Rules the focus of the SRA in assessing the suitability of solicitors is the protection of the public, the public interest, and maintaining public trust and confidence in the solicitors’ profession. The need for this trust and confidence is understandable given that solicitors can hold significant sums of money or assets for clients and can control substantial transactions.

The C&S Rules set out several factors that will be taken into account in assessing character and suitability, including criminal behaviour or financial mismanagement, but provide that the SRA will consider ‘any information available to it and take into account all relevant matters’. The scope of the relevant factors is therefore unfettered, so the SRA has, in essence, always been able to consider any health issue, but now there is an explicit requirement to make disclosures in certain circumstances.

During the consultation stage concerns were raised, including the concern that the decision to make ‘health’ an explicit component of the factors that the SRA will take into account could put off aspiring solicitors with disabilities from applying for admission, perceiving that their disability could be a barrier to the profession (Junior Lawyers Division ‘JLD’). Additionally, that the disclosure of disabilities within the profession was already ‘woeful’, and this would force disclosure numbers ‘even lower for fear of having to jump yet another hurdle in what is a difficult environment for many people with disabilities’ (Lawyers with Disabilities Division ‘LDD’).

Despite these concerns (and these do not represent a comprehensive summary), the proposals were implemented as drafted. Rule 2.6 of the C&S Rules now clearly states that the SRA can take anything into account, including health, which indicates that an individual is unfit to meet their regulatory obligations or be subject to regulatory investigations or proceedings. Under the Authorisation of Individual Regulations, the SRA can refuse an application for a practising certificate, and now impose conditions ‘for any reason, including health grounds’. Guidance from the SRA indicates that health conditions include both physical and mental health conditions.

The SRA’s guidance on applying for admission to the roll of solicitor and for a practising certificate has now been amended to reflect the changes. Both now stipulate that the SRA will take into account any information which indicates an individual is not fit to practise as a solicitor. Examples of the types of information the SRA will consider are set out, and include amongst other factors, ‘health conditions’.

Individuals do not need to disclose health conditions if they are satisfied that the condition is addressed along with any risks the condition may pose to practising as a solicitor or meet regulatory obligations.

If there is uncertainty, there is a link to further guidance on the SRA’s website. Worryingly, this guidance relates to consideration of a health condition during a regulatory investigation. This may lead to a perception that disclosure will lead to an investigation, and echoing the concerns of the JLD and LDD, such explicit requirements may create a barrier to the profession or to disclosure more generally. Even more concerning is the possibility that individuals wishing to be admitted to the roll, or wishing to renew their practising certificate, may not seek medical help for any health conditions, particularly matters relating to mental health, fearing that this may adversely affect their application prospects.

The primary purpose of the SRA in their regulation is the protection of the public. The aim of the guidance generally appears to be wanting to identify any potential health issues early and manage the situation effectively. However, there is little guidance on disclosure outside of investigations. With the onus on individuals to provide evidence relevant to an assessment of character and suitability under Rule 6.7 of C&S Rules, the question is what evidence will be enough to establish fitness to practise to a non-medically qualified regulatory body, and what evidence can be obtained from a medical profession who will be unfamiliar with regulation of the legal profession, and the competency standards expected of a solicitor, in commenting on that suitability.

When previous arrangements would have allowed any health conditions to be taken into account in any event, perhaps these explicit rules will do more harm than good. It would be interesting to see the results of research on why there has been an increase in solicitor’s health related issues. Particularly with respect to mental health, is this as a result of increasing awareness? Have sole practitioners found selling up more difficult in the current climate and so remain at the helm until advanced years prevent suitability to practise? Are there statistics on the occurrence of mental health issues following notification of an investigation, and the stresses involved? What truly sits behind the statistics that informed the SRA to propose amendments?

Surprisingly, when one of the results of the SRA’s own reviews is the worry about raising issues of mental health amongst solicitors, they continued with seeking approval for amendments that require disclosure.