SRA Handbook

General

Back to version 21

Version 2 of the Handbook was published on 23/12/2011. For more information, please click 'History' Above

Part 1: General

Rule 1: Interpretation

1.1

In these rules, unless the context otherwise requires:

adjudicator

means a person not involved in the investigation or preparation of a case who is authorised by the SRA to take disciplinary decisions;

AJA 

means the Administration of Justice Act 1985;

appellate body

means the body with the power, by virtue of an order under section 80(1) of the LSA, to hear and determine appeals against decisions made by the SRA acting as a licensing authority;

disciplinary decision

means a decision, following an SRA finding, to exercise one or more of the powers provided by:

(i)

section 44D(2) and (3) of the SA;

(ii)

paragraph 14B(2) and (3) of Schedule 2 to the AJA; or

(iii)

section 95 or section 99 of the LSA;

or to otherwise give a regulated person a written rebuke or to publish details of a written rebuke or a direction to pay a penalty in accordance with these rules;

discipline investigation

means an investigation by the SRA to determine whether a person should be subject to an SRA finding, a disciplinary decision or an application to the Tribunal under rule 10;

HOFA and HOLP 

means a Head of Finance and Administration and a Head of Legal Practice within the meaning of section 92 and 91 of the LSA, respectively;

licensed body

means a body licensed by the SRA under Part 5 of the LSA;

LLP

means a limited liability partnership incorporated under the Limited Liability Partnerships Act 2000;

LSA

means the Legal Services Act 2007;

manager

means:

(i)

a partner in a partnership;

(ii)

a member of an LLP;

(iii)

a director of a company; or

(iv)

in relation to any other body, a member of its governing body;

person

means an individual or a body of persons (corporate or unincorporated);

person who has an interest in a licensed body

means a person who has an interest or an indirect interest in a licensed body as defined by sections 72(3) and (5) of the LSA;

person under investigation

means a person subject to a discipline investigation;

recognised body

means a body recognised by the SRA under section 9 of the AJA;

registered European lawyer

means an individual registered by the SRA under regulation 17 of the European Communities (Lawyer's Practice) Regulations 2000 (SI 2000/1119);

registered foreign lawyer

means an individual registered by the SRA under section 89 of the Courts and Legal Services Act 1990;

regulated person

means:

(i)

a solicitor;

(ii)

a registered European lawyer;

(iii)

a registered foreign lawyer;

(iv)

a recognised body;

(v)

a manager of a recognised body;

(vi)

a licensed body;

(vii)

a manager of a licensed body;

(viii)

an employee of a recognised body, a licensed body, a solicitor or a registered European lawyer; or

(ix)

to the extent permitted by law, any person who has previously held a position or role described in (i) to (viii) above.

SA 

means the Solicitors Act 1974;

SRA

means the Solicitors Regulation Authority, and reference to the SRA as an approved regulator or licensing authority means the SRA carrying out regulatory functions assigned to the Law Society as an approved regulator or licensing authority;

SRA finding

is a decision that the SRA is satisfied:

(i)

that a regulated person (which for the avoidance of doubt, shall include a solicitor) has failed to comply with a requirement imposed by or made under the SA, AJA or the LSA;

(ii)

in relation to a solicitor, that there has been professional misconduct; or

(iii)

that a HOLP, HOFA, manager, employee, person who has an interest in a licensed body, or any other person has (intentionally or through neglect) caused or substantially contributed to a significant breach of the terms of the licensed body's licence, or has failed to comply with duties imposed by section 90, 91, 92 or 176 of the LSA as appropriate,

and for the avoidance of doubt does not include:

(iv)

investigatory decisions such as to require the production of information or documents;

(v)

directions as to the provision or obtaining of further information or explanation;

(vi)

decisions to stay or adjourn;

(vii)

authorisation of the making of an application to the Tribunal;

(viii)

authorisation of an intervention pursuant to the SA, the AJA, the Courts and Legal Services Act 1990 or Schedule 14 of the LSA;

(ix)

a letter of advice from the SRA.

the Tribunal

means the Solicitors Disciplinary Tribunal which is an independent statutory tribunal constituted under section 46 of the SA but references to the Tribunal do not include the Tribunal when it is performing any function as an appellate body;

1.2

the singular includes the plural and vice versa.

Rule 2: Scope

2.1

These rules govern the procedure for the SRA to:

(a)

give a regulated person a written rebuke;

(b)

direct a regulated person to pay a penalty;

(c)

publish details of a written rebuke or a direction to pay a penalty;

(d)

disqualify a person from acting as a HOLP or HOFA, or being a manager or employee of a licensed body; and

(e)

make an application to the Tribunal.

2.2

These rules shall not prevent, prohibit or restrict the exercise of any other powers or other action by the SRA.

Rule 3: Disciplinary powers

3.1

The circumstances in which the SRA may make a disciplinary decision to give a regulated person a written rebuke or to direct a regulated person to pay a penalty are when the following three conditions are met:

(a)

the first condition is that the SRA is satisfied that the act or omission by the regulated person which gives rise to the SRA finding fulfils one or more of the following in that it:

(i)

was deliberate or reckless;

(ii)

caused or had the potential to cause loss or significant inconvenience to any other person;

(iii)

was or was related to a failure or refusal to ascertain, recognise or comply with the regulated person's professional or regulatory obligations such as, but not limited to, compliance with requirements imposed by legislation or rules made pursuant to legislation, the SRA, the Law Society, the Legal Ombudsman, the Tribunal or the court;

(iv)

continued for an unreasonable period taking into account its seriousness;

(v)

persisted after the regulated person realised or should have realised that it was improper;

(vi)

misled or had the potential to mislead clients, the court or other persons, whether or not that was appreciated by the regulated person;

(vii)

affected or had the potential to affect a vulnerable person or child;

(viii)

affected or had the potential to affect a substantial, high-value or high-profile matter; or

(ix)

formed or forms part of a pattern of misconduct or other regulatory failure by the regulated person;

(b)

the second condition is that a proportionate outcome in the public interest is one or both of the following:

(i)

a written rebuke;

(ii)

a direction to pay a penalty; and

(c)

the third condition is that the act or omission by the regulated person which gives rise to the SRA finding was neither trivial nor justifiably inadvertent.

3.2

Where the SRA has decided to direct a regulated person to pay a penalty:

(a)

in considering the level of penalty to direct the SRA shall take into account the financial penalty criteria in appendix 1 to these rules; and

(b)

the penalty shall not exceed the maximum permitted by law.

3.3

The circumstances in which the SRA may make a disciplinary decision to disqualify a person from acting as a HOLP or HOFA, or being a manager or employee of a licensed body are when the following two conditions are met:

(a)

the SRA is satisfied that it is undesirable for the person to engage in the relevant activity or activities; and

(b)

the SRA is satisfied that disqualification is a proportionate outcome in the public interest.

3.4

In considering whether to make a disciplinary decision to disqualify a person from acting as a HOLP or HOFA, or being a manager or employee of a licensed body, the SRA shall take into account:

(a)

the criteria at appendix 3; and

(b)

any indicative guidance published by the SRA from time to time.

3.5

The SRA may make a disciplinary decision to publish details of a written rebuke or a direction to pay a penalty when it considers it to be in the public interest to do so in accordance with the publication criteria in appendix 2 to these rules.

3.6

Nothing in this rule shall prevent the SRA making an application to the Tribunal in accordance with rule 10.