Update: New Rules and Guidance From the SRA - October 2022

Andy Donovan, Managing Director and Founder of Compliance Office

This update summarises the latest SRA guidance and rules. If you would like any guidance on anything SRA-related, book a free consultation with Compliance Office now.

Labelling letters as ‘private and confidential’ and/or ‘without prejudice’

The SRA plans to issue further guidance on when litigators are allowed to label letters as ‘private and confidential’ and/or ‘without prejudice’. This follows letters being sent to a Mr Neidle by lawyers (Osborne Clarke) for former Chancellor Nadeem Zahawi which accused him of libel. Osborne Clarke asserted that the letters were confidential and warned of “serious consequences” if he published them. Mr Neidle published the letters and wrote to the SRA saying it was “plainly incorrect as a matter of law” that calling letters ‘confidential’ or ‘without prejudice’ meant they could not be published in these circumstances. In response, Juliet Oliver, General Counsel for the SRA, said that they “plan (amongst other things) specifically to address the practice of labelling correspondence as ‘private and confidential’ and/or ‘without prejudice’, and to address the conditions under which doing so may be a breach of our requirements.” This could represent quite a shift in expectations for what is a fairly common practice engaged by some lawyers.

117 ongoing investigations and 251 reports made to the SRA since 2018 regarding alleged sexual misconduct

This is compared to just 30 in the preceding five years. This increase in reports and investigations has resulted in the SRA publishing new guidance on sexual misconduct within law firms, setting out their expectations for both firms and individuals. This new guidance addresses one of the recurring issues in many of these cases which is how far a solicitor’s regulatory obligations extend to both their professional and private lives. Paul Philip, the Chief Executive of the SRA, emphasised the regulator’s view that it was “common sense” that upholding the principle of acting with integrity could reach into a solicitor’s private life. Consequently, the SRA has also updated its guidance on acting with integrity. There have also separately been reports that the SRA’s view in the future will be that suspension, strike off or equivalent will be the starting point in cases concerning sexual misconduct, discrimination or harassment – not a lesser sanction such as a financial penalty.

New SRA guidance on convictions arising from matters of principle or social conscience

The guidance includes a really interesting case study which appears to be based on a real-life case whereby a trainee solicitor was arrested for their part in unlawful climate protests. The SRA appears to have taken no action against the individual for lying down in the middle of a busy road and receiving a conviction for obstructing a public highway. It’s interesting to think that if the individual’s behaviour had at any time involved anything dishonest, they likely would have been struck off. Deliberately committing a criminal offence is seemingly tolerated under certain circumstances, but lying about it would certainly end a career.

New SRA guidance on undertakings given by, or on behalf of, incorporated practices

The purpose of this guidance is to explain your obligations when undertakings are provided by, or on behalf of, incorporated practices. This is because a Supreme Court decision has confirmed that the courts have no jurisdiction to enforce undertakings against incorporated practices. However, an incorporated practice could still face regulatory proceedings as there might have been a breach of the rules.

Learn more about VinciWorks’ undertakings register.

Other updates

Guidance on accepting instructions from vulnerable clients or third parties acting on their behalf has been published to help highlight issues to consider when acting for such clients such as determining capacity
The SRA has updated their guidance on the confidentiality of client information

About Compliance Office

Founded by Andy Donovan, a former SRA legal policy advisor, Compliance Office’s team of consultants draws on years of experience and a proprietary set of tools and templates to help law firms with all of their compliance needs. The merger enables VinciWorks to provide an end-to-end AML package including a CDD client onboarding tool, AML training and compliance consulting, as well as an all-in-one SRA solution that includes training, compliance software, and consultancy.

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