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There’s a disconnect between the strategic and operational arms of the SRA and it’s leading to unfairness
The arrival of the SRA’s ‘outcomes-focused regulation’ was applauded when it came in with the new industry code of conduct in 2011. But how has the profession found it in practice?
The rhetoric is compelling: a sophisticated type of regulation requiring a grown-up relationship between the regulator and the community it regulates; a regime that eschews black letter rules and a box-ticking mindset and instead leaves firms free to find new ways to deliver legal services to clients in a fast-changing market, overseen by a regulator no longer concerned with shoe-horning business models into outdated structures.
In practice, the view is nothing like as rosy, for the simple reason that the people on the ground seem to be operating in a vacuum that bears no relation to the strategic thought process at the top of the organisation. Meanwhile, the people at the top seem to be unaware how their carefully thought through policies are being meted out on the ground.
There is an obvious disconnect.
In essence, the problem is that there is so much grey being policed by people who only really understand black and white - firms being allowed to think for themselves about how to construct services within the confines of the broad outcomes that have been set.
Given that firms are being required to exercise their own judgement with very little guidance, surely it stands to reason that if they do not hit the mark first time, as long as they made genuine and reasonable attempts to do so, they should not be penalised. This is the point at which they need constructive help in the form of feedback and guidance, but that often simply does not happen.
All too regularly I see stories of firms unfairly prosecuted where, if a modicum of common sense were applied, the regulator might have hesitated.
In some cases, I have been able to speak to the people I know in the SRA’s senior management team and the case has been dropped. But by then, much of the damage will already have been done: there are the sleepless nights, the stress and frustration of being unfairly treated and the damage to reputation as disciplinary matters are made public at an early stage. Business is stymied as you cannot progress strategies such as recruiting or expanding with confidence, clients and panel appointments are in danger of being lost, key personnel think about leaving and your insurance premiums rise.
It cannot be right that firms who have done little wrong are treated in a manner so damaging to their business, and all because of a disconnect between the strategic and operational arms of the regulator.
Why don’t we hear more firms complain? Quite simply, most prefer to keep their stories quiet for fear of upsetting a powerful regulator and a wish to avoid recriminations in the future.
Those policing our regulatory regime on the ground, enjoying such enormous power and discretion, are clearly out of step with those at the top, who are in charge of designing policy. Something must be done.