The SRA has at last issued a brief statement on this very significant issue. I suspect the virus has massively impacted on the Authority and I know many employees are working from home. It is not business as usual and of course, it is not business as usual for pretty well every law firm.
The SRA has said it will be pragmatic and proportionate and expects solicitors and firms to continue to meet the high standards the public expect. It expects law firms to have had contingency plans in place to cover disruption, but by any standards what has happened over two short weeks was both massive and totally unpredictable. No one would have had a plan in place to cover this. The events may well be terminal for some firms and the regulator will need to be sensitive.
Nonetheless, SRA expects firms to do everything they reasonably can to comply with rules and Principles, and no one would seriously argue with that. As lawyers, we all want to continue to serve the best interests of our clients and to behave properly. Rightly SRA will focus on those who are making little or no effort to do the right thing. The vast majority of us will make every effort to act correctly.
It remains to be seen what pragmatic and proportionate means in practice. Of course, we won’t know that for weeks if not months, as the implications of any breaches emerge in investigations. In the immediate term, it has to recognise that investigation interviews should not take place. They can be done in writing or video conferencing if really pressing. I have heard anecdotally that as recently as last week Investigation Officers were looking to set up interviews, but that will now stop. Even investigations conducted in writing may be difficult if records and documents are not as readily available as they would otherwise have been. Attendances at the firm’s offices will need to be reconsidered, and it is to be hoped there will be real flexibility over deadlines. SRA invariably imposes dates to respond to investigatory letters and it is going to be tough for quite a while to meet these. This will apply to firms which have closed their offices and arranged for everyone to work remotely from home.
I would like to think that when dealing with regulatory breaches SRA will not only be proportionate and pragmatic, but realistic. It would be wonderful if all compliance breaches and challenges could be identified and documented for an audit trail, but it may just not be possible and this is where realism will be needed. Many employers and employees will be worrying about their businesses, jobs and homes, as well as their health and possibly even their lives. The regulator will indeed need to be proportionate, pragmatic and above all else realistic.
I provide practical and realistic advice to solicitors and their firms and have been doing so for many years. You can contact me through this site. Even if I am taking my daily outside exercise allowance.