Which one of these are you?

The SRA wants to put you in a ’compliance category’. Which one describes you?

According to the SRA, you are one of these:

“Unconsciously compliant people: those who do not know the rules very well and who unknowingly comply with them (for instance, because they copy other behaviour, such as people do in traffic).

Unconsciously non-compliant people: those who break the rules because they do not know the rules well.

Spontaneously compliant people: those who know the rules and would comply with them off (sic) their own accord, even if (in theory) there were no enforcement whatsoever.

Spontaneously non-compliant people: those who know the rules and would always break them spontaneously, regardless of the risk of inspection, the risk of detection, the risk of punishment or the severity of the potential punishment.

People deterred by enforcement or calculatingly compliant people: the people who know the rules and who would break them, but rather decide against it with a view to enforcement activities.

Consciously or calculatingly non-compliant people: those people who knowingly break the rules and consciously accept the risk of being caught.

Next to these, there is a group that will not be influenced, or is very hard to influence, this group can be either very respectful to authority (the good ones) or very disrespectful to authority (the bad ones). “

And you might want to read the very detailed report on how the SRA intend to deal with you.

According to its own figures, calculated before the 2011 Code of Conduct came into force, the SRA discovered that 90 per cent of firms were non-compliant with the 2007 code. Yes, that’s 90 per cent. And that 80 per cent would not be compliant with the 2011 version.  Out of the 200 firms sampled, just 19 were found to be in compliance with both codes. 

OFR – ’Outcomes-focused regulation’- is a whole new language and way of thinking. Instead of rules, we have “indicative behaviours,” which will be examined to show that we have achieved the necessary “outcomes”. These words are not easily absorbed.

But why do we need, in the words of the Law Society “a move away from a rules-based approach to one that focuses on high-level outcomes governing practice and the quality of outcomes for clients”.

Was the 2007 code so bad? I didn’t mind the rules – I could look them up when I needed them and could work out what was right or wrong. Even with the figures for non-compliance referred to above, the majority of breaches reported appeared to be fairly minor in nature.

My firm cannot be alone in having spent vast sums trying to understand what it must do to comply with the new regime and how and if it needed to change its behaviours to comply with the new code. I suspect, like me, many of you have all been slightly bemused at lectures and workshops ploughing through the handbook trying to decipher the meaning behind its unusual terminology.

So how did all this happen? In the old days, we were governed by the Law Society; light touch regulation and a very useful telephone helpline service for your ethical problems.

I reckon you could ask 99 per cent of lawyers what the SRA is actually for, why it came about and what its relationship is with The Law Society and they’ll give you a blank stare. Read the Clementi report if you’re interested. That led to the birth of the SRA, created to independently regulate lawyers, because in the modern world, where the interests of the consumer are all important, the Law Society was regarded as a body for the protection of solicitors, not clients.

So we got the SRA, and the 2007 code, with its 200 pages of rules.  Like countless others, I spent many hours making sure that if we had a visit by the much-feared Practice Standards Unit, we would be compliant.

Hours were spent making sure that not only did we comply, but that we had a proper paper trail to show it. We had a written policy for everything. Very little was actually new and much of it consisted of codifying what we already did as a matter of good practice, built up over years of experience and light-touch regulation.

But no, that didn’t work for the SRA and so we get OFR and a new round of learning, conferences, workshops, seminars and reading.

And in particular, the thing that keeps me awake at night, is the entirely new concept of COLPs (compliance officer for legal practice) and COFAs (compliance officer for financial and administration). Again, much money and many hours spent trying to understand what the roles actually entail and then trying to work out who might take them on. The Law Society states, on its own website: “There has been a lack of clarity over the role of COLP.” Indeed.

I confess, I was rather embarrassed at a recent Law Society workshop (on this subject, naturally)  to have to admit that we hadn’t actually nominated anyone yet.  And why hadn’t we?  Because we were struggling to understand what it really entailed and to make sure that we appoint the right person to do it.

Also, no one was exactly putting their hand up for it. And who could blame them? Who would actually want to take on a job, the scope of which is unclear but incredibly important? And it’s an unusual person who would volunteer for a role, one of the main functions of which would require them to report ’material breaches’ by their fellow workers and firm, to the SRA. Never mind the personal liability issue.

And now the SRA has delayed the requirement to appoint the COLP and COFA and the profession breathes a (very) short sigh of relief. The SRA website says that this is because of  “the postponement of the closure date for online renewals”. Indeed.

This requirement to self-regulate is a massive sea-change for the profession and I’m not sure that the implications have yet been fully understood by many solicitors.

The larger firms, with teams of compliance officers and support lawyers, will have already produced reams of literature about it. There will have been countless lectures and seminars given in firms up and down the land.

Small firms, where both COLP and COFA roles will often be undertaken by the managing partner, will, I suspect, find it very difficult to muster the enthusiasm to report themselves, in a ’turkeys voting for Christmas’ sort of way, don’t you think?

I wonder whether it may even be counter-productive, as I imagine that individual lawyers will be terrified to admit any technical failing to their superiors, for fear of being reported by the COFA.

In a profession as diverse as ours, you simply can’t have ’one size fits all’ regulation. What works for the high street (or what’s left of it) won’t work at Big Law. Maybe this is why the SRA seems to be having trouble giving guidance as to how to implement it.

Please don’t think I’m against regulation. I entirely understand and agree with the need to protect the public.  I entirely understand the need to regulate the profession properly.  I entirely understand the need to protect the public (and the reputation of the profession)  from rogue firms.  But this is a huge change in emphasis and has already created and will continue to create a massive amount of work for firms across the profession.  And for what? Was the profession really so in need of further regulation? I wonder.

And the reality is that I think we all know, implicitly, what the ’principles’ are, and most lawyers are, I suspect, in the words of the SRA, either “spontaneously compliantor “unconsciously compliant already. Whatever we were before, we will certainly all now be “people deterred by enforcement”.  

And, quite frankly, if the principles in the code aren’t your principles already, you shouldn’t be practising. I just wish we didn’t all have to be quite so obviously seen to be doing it.

Nicky Richmond is managing partner of Brecher