As of 25 November 2019 the SRA Code of Conduct 2011 will be replaced by the new SRA Standards and Regulations 2019 (‘the Regulations’). The Regulations overhaul the framework of the 2011 handbook and introduce significant changes to what is required of SRA regulated professionals.
The focus of the Regulations appears to be simplicity. The 10 SRA principles in the 2011 handbook have been reduced to 7 fundamental tenets of ethical behavior. ‘Outcomes and Indicative Behaviours’ have been removed and replaced by straightforward mandatory provisions. The Regulations also introduce briefer Accounts Rules, allowing more discretion to be used by solicitors’ firms as to how to handle money, as long as practices can be justified as ethical and compliant with the regulations. Other key changes include the introduction of two separate codes of conduct for solicitors and for firms, and the requirement of firms to display the SRA’s digital badge on their website to show they are regulated. Paul Philip, Chief Executive of the SRA, said the new Regulations are “designed to make life easier for firms” and removes “unnecessary bureaucracy”.
However, in many places the requirements of the Regulations appear to be less specified than those contained in the SRA Code of Conduct 2011, which are more detailed. The effect of this can be that the requirements in the Regulations are broader, more general and leave room for uncertainty as to whether or not they are being complied with.
For example, in a new section entitled ‘Dispute resolution and proceedings before courts, tribunals and inquiries’ there is a new provision (2.4): ‘You only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable’. Another provision in the same section (2.6) states ‘You do not waste the court’s time’. Solicitors in practice do strive to put forward ‘properly arguably’ assertions and to not waste court time, the usual consequence of not doing so is an order from the court striking out cases or enforcing strict deadlines for case progression by parties. Under the new Regulations, failure to fulfil these duties could potentially subject a solicitor to a risk of regulatory proceedings.
The Regulations add a further fundamental principle of ‘honesty’ to the current principle of integrity. This reflects the determination that honesty is distinct from integrity in that honesty is not a principle of the 2011 Code itself, but dishonesty can be an aggravating factor when considering breaches of other principles such as integrity. The new Regulations enshrine honesty as a standalone principle by which SRA regulated professionals must abide.
The Regulations do simplify the framework which SRA regulated professionals must operate within but the new Regulations appear more onerous. The broader provisions may result in solicitors being less certain as to whether they are acting in complete compliance with the rules in normal practice. Where the new Regulations have prioritised simplicity, they may have lost clarity.
As a result of the introduction of the new Regulations coupled with the Solicitors Disciplinary Tribunal lowering its standard of proof for proving allegations, solicitors may increasingly find themselves falling foul of their regulatory body and subject to discipline for practice which they may consider to have previously been in compliance.
Written by Yavnik Ganguly – Paralegal, Employment and Professional Discipline Team