Regulators have launched a major review of reporting requirements for firms dealing with suspected misconduct by their employees, inviting solicitors and firms to share views and practices. The Solicitors Regulation Authority (SRA) wants to see greater clarity established for when and why firms should raise concerns about potential wrongdoing.

Not for law firms to decide

The Solicitors Regulation Authority (SRA) is looking to clarify the threshold used by firms when deciding whether to report concerns. The eight-week consultation comes as the debate increases over non-disclosure agreements (NDAs) in sexual harassment cases, though the SRA said the this was not primary reason for the review. They say confusion exists among firms about when they should flag up issues. Some opt to report to the SRA the moment an issue arises, whereas others wait until the result of an internal investigation before alerting the regulator. Speaking at a media briefing, SRA chief executive Paul Philip said ‘timely reporting of potential misconduct is a key part of public protection. We want to make sure that solicitors and law firms are clear about what, and when, they should report.’ He said the authority wanted firms and solicitors to have a ‘mature and grown-up relationship’ and look for the right balance between protecting the interests of the public and the profession. Mr Philip stressed it is not for law firms to decide whether or not there has been misconduct, as that remains the regulator’s role.

New rules due April 2019

The SRA is receiving about 12,000 enquiries a year, but action is being taken in only a few hundred of these cases. The regulator believes that the mere suggestion or suspicion is too low a threshold and would result in over-reporting of matters that cannot be proved. Among the key issues will be whether firms are doing enough to report alleged sexual misconduct, and if non-disclosure agreements are delaying or helping to suppress the release of information to the regulator. The SRA is not planning to create a strict reporting regime, nor ‘outsource’ investigations to law firms themselves. Responses are invited from solicitors and firms up to 27 September. Any new rules and code of conduct could be introduced in April, supplemented by guidance possibly in the form of examples or decision trees, and requires approval from the Legal Services Board.