The need to deal carefully, thoroughly and openly with the SRA during investigations cannot be overstated. There is an explicit professional obligation to cooperate with the Authority and to provide it with whatever information it might need to carry out regulation responsibilities. No one will argue with that but there is also a balance to be struck.
Investigations can be conducted in a variety of ways.
The Authority can conduct an enquiry in writing. This is a desk based investigation conducted by an investigation officer or caseworker. Their experience and seniority vary considerably. The letter will typically explain the reason for the investigation and set out a series of questions and a timetable for answering.
The written responses need preparing with considerable care. Careless or imprecise answers can come back to haunt you at a later stage should the investigation lead to disciplinary proceedings. You will be surprised at just how thoroughly your answers are looked at, and it may be difficult or impossible to correct a mistake or explain what you really meant by inaccurate answers.
If there is one stage where it is worth taking proper legal advice before doing anything, this is it because it can have a huge impact on everything that follows. It can bring an investigation to an end; it can limit damage and begin to form the basis of an agreement that avoids a Disciplinary Tribunal; it can lay the foundations for evidence at a Tribunal should that be necessary.
The Authority can also conduct an investigation in person by sending an investigation officer to your office to conduct an enquiry. That will usually be preceded by a letter from the nominated officer giving notice of an attendance, and specifying the documents or files that he or she wants to see. It is very likely the officer will want to interview you, and as with questions in writing it needs dealing with considerable care. The interviews are invariably recorded with selected extracts being used at a later stage depending upon the outcome of the investigation.
Alternatively, the officer may prefer to ask questions in writing and obtain your answers that way. There is no prescribed format, there is no legal requirement for a caution and many solicitors are unaware of how best to deal with investigation officers at this stage.
Whatever form the investigation takes, it needs treating seriously so that you comply with your obligations to your regulator. Equally, the SRA must be sufficiently open about its investigation so that you can positively contribute. This is not like a police investigation where you can opt not to answer questions, but you are entitled to legal advice in advance of and during investigations so that your answers are specific to the questions that are put to you, and ones that will stand later scrutiny should the matter proceed to a tribunal.
You will need for example to write with great care when explaining what you did and why, and what your state of mind was. This can be absolutely critical.
I have dealt with dozens of cases where solicitors have fallen down on the inadequacy of their answers either at interview or in correspondence and where damage is unwittingly caused at an early stage in the process where the need for legal advice may not be immediately obvious.