Detection, Investigation and Preparation

A. Detection

Detection of possible professional infractions often occurs as a result of complaints from clients, criminal proceedings or tip-offs, including from other lawyers.

The 1990 edition of the Guide contained an obligation to report serious miscon­duct by another solicitor, subject to client consent. It published data showing that 33 allegations of impropriety were made by solicitors against fellow solicitors in 1986 and 45 in 1987. Similar data did not appear in subsequent editions. Later editions of the Guide stated that solicitors were under a duty to report serious misconduct by another solicitor, subject to client consent.^[1264] This applied to serious misconduct within the firm the solicitor worked for.^[1265]

The Solicitors’ Code of Conduct 2007 contained a similar reporting obligation to that previously appearing in the Guide.^[1266] The SRA Code of Conduct 2011 now places an obligation on solicitors to report, ‘serious misconduct by any person or firm autho­rised by the SRA, or any employee, manager or owner of any such firm’.^[1267] The rider is no longer that clients must consent to such a report, but that the solicitor takes into account, where necessary, their duty of confidentiality.

B. Investigation

If allegations of misconduct are serious, an investigation can be launched. This is conducted by the Bar Standards Board in the case of barristers or the Solicitors Regulation Authority in the case of solicitors. In the case of solicitors there is the possibility of forensic investigation of accounts, files and the interviewing of partners and employees.

The task of an investigating authority is to decide whether there is sufficient evi­dence to conclude that a disciplinary offence has been committed. If so they can assess whether a reference to a disciplinary tribunal is necessary. This might include consideration of whether the lawyer is likely to repeat the conduct. The regulator can decide to advise, reprimand or warn the lawyer about future conduct. Serious cases are referred to the Solicitors Disciplinary Tribunal or Bar Disciplinary Tribunal.

C. Preparation

Where the investigating authority decides that a case should be referred to a disciplin­ary tribunal, it usually prepares the case, undertaking such further investigation as necessary. This may include interviewing further witnesses.

V.