Production of documents, information or explanations
The SRA can exercise its investigative powers at any time under the Solicitors Act, the Legal Services Act or any rules made by the Law Society or the SRA for production of documents, information or explanations.
It can require the production of information from third parties such as clients’ accountants and banks.
The SRA has a wide discretion, and it can exercise its powers of investigation in writing or in person, by telephone or by e mail or a combination of them all.
Most investigations are conducted with notice to the solicitor, explaining the reason and the information required. Where the SRA considers the circumstances sufficiently serious and where client money might be at risk it has the power to start without notice.
There are all kinds of reasons why an investigation might be commenced but the most common in my experience are reports by firms of misconduct by an employee or partner, an external report from the police or from another court or regulator, or a self report. A qualified accountants report can also lead to an investigation.
Complaints by clients or the Legal Ombudsman can lead to investigations if they seem to involve misconduct as well as poor service. Over recent years the SRA has also acted on intelligence received from a wide range of sources about activity in certain risk sectors such as SDLT avoidance, false insurance claims and mortgage fraud. It targets certain legal sector activities. An investigation at one firm can easily lead to one at another firm.
It tends to be the nature of the conduct involved that determines how the SRA carries out its investigation and those involving accounts and legal transactions will very likely be carried out in person by an Investigation Officer who will inspect records and files. There is very likely to be an interview as well, which in a number of respects is similar to a police interview. It is recorded and can be used in evidence later on.
Telephone and e mail enquiries can sometimes feel quite informal but they need treating with care. Answers will be used later on.
The SRA has considerable flexibility in determining how to go about conducting an investigation, but its primary purpose is to find out exactly what has gone on and to obtain an explanation from the solicitors involved. It can do this by interview or in writing, but unlike a police interview there is no right to silence. When the SRA seeks an explanation it will warn the solicitor that a failure to reply or to cooperate will in itself lead to disciplinary action, that any reply can be disclosed for example to another regulator or the police, and that the reply can be used in regulatory proceedings brought either by the SRA itself or before the Disciplinary Tribunal.
The SRA is empowered to require the production of an explanation within whatever time period it stipulates, although this cannot be less than 14 days.
Being involved in an investigation can be stressful and burdensome. Most solicitors I have encountered find it a huge distraction from work and home life. They are usually very concerned to avoid saying or doing the wrong thing.
I can provide the support and advice that you will need during an SRA investigation. I understand the entire investigative process and can offer advice and assistance all the way through it or at particular stages. It can make a real difference. Investigation Officers can be properly asked to clarify exactly what they require and why, and to ask questions with clarity. These basics avoid the risk of answers being provided that cause difficulty later on. Once something is said, it is not easy to unsay it or to correct it.