Whoever coined the phrase ‘All publicity is good publicity’ cannot have been thinking about the publication of regulatory sanctions for solicitors.
The recent Court of Appeal decision that refused an injunction preventing Private Eye from publishing details of a complaint and disciplinary finding against Michael Napier was seen as a victory for consumers and freedom of speech.
And so it is. Any aggrieved client can now publicise not only the fact that they have complained but also the outcome of the investigation. There is no duty of confidentiality owed.
So, is this a surprise? Not really. Since January 2008, the Solicitors Regulation Authority’s (SRA) policy has been to publish certain decisions on its website where it is in the public interest to do so – and it will be rare for it not to be.
New powers allowing the SRA to impose rebukes and fines can also be published. If the reprimand ordered against Napier had been made post-January 2008, it would in all probability have been published by the SRA in any event.
So why all the fuss? Well, Napier’s evidence appears to have been that if he had realised that the result of the case might be publicised by the complainant, he would have applied for judicial review and his main reason for not doing so was to avoid publicity. How ironic given the publicity that this case has now generated.
The court gave an example of a solicitor against whom highly publicised allegations of misconduct are made by an aggrieved client but are dismissed after investigation by the Law Society. The solicitor may well wish to clear their name by making the result known and they should not be prevented from doing so by a duty of confidentiality.
But how many solicitors would actually wish to broadcast such a decision? Many will just be relieved that the investigation is at an end without any sanction being imposed. Publishing a statement to the effect that a firm is delighted that the SRA has found in its favour would only bring more attention to the firm and the risk is that the public will think there is no smoke without fire.
So what are solicitors now meant to do when faced with a regulatory sanction? Accept the decision and hope that the complainant will not seek to publicise it any more than the SRA website publication? Or fight on, appealing the decision to the tribunal or applying for judicial review in the hope that the initial decision will be overturned? None of the options are particularly attractive and each case will have different considerations.
The cost and time factors of defending oneself will be significant and yet what value can you put on reputation? It is saddening to see that Napier has resigned from the Legal Services Board to devote time to defending the reopened investigation by the SRA into the alleged breaches, but his decision is entirely understandable.
And what of the new complaints regime coming into force next year? Last October the Legal Complaints Service left the decision about naming and shaming to the Office for Legal Complaints, but publication of decisions is likely.
The fear is that firms will either seek to buy off the complaint in-house no matter how unmeritorious it may be, or will want to fight any decision tooth and nail if it knows it will be published. The Court of Appeal has cleared the way for consumers to go to the press no matter what. Happy days.
The only true solution is to be compliant and provide the best client care possible, thus avoiding complaints and the regulator. Sometimes easier said than done. Welcome to the consumer world.