The SRA Code of Conduct is undoubtedly one of the most important pieces of regulatory change to affect the profession in recent times. Much has been said about the shift in emphasis from rules to outcomes, and most firms are now getting to grips with the practicalities of that change. But in our experience, too many firms have not even properly introduced their staff to the rules, or provided any training whatsoever.
This is a major oversight, bearing in mind that:
• training is one of the key Chapter 7 obligations on law firm managers and owners (and by extension, COLPs and COFAs);
• the Code of Conduct dictates what fee earners and staff need to achieve when running their cases and dealing with their clients, which in turn will impact upon their working practices;
• the COLP and COFA in most firms will rely on staff to report emerging risks and breaches of the rules; and
• in order to be able to recognise those risks and breaches, staff need to have a thorough understanding of the core Principles and Outcomes.
The 10 SRA Principles
The 10 Principles are the cornerstone of legal practice and the starting point of any training programme. Some of the Principles are fundamental professional duties and, some would say, minimum expectations of any person providing legal services. Others have been elevated to a an importance beyond what we have seen before e.g. equality and diversity, financial and risk management.
While most lawyers will have been through the SRA Code of Conduct and may claim to know the Principles – do they really? And do they understand how they practically apply? In our experience, most senior managers and Partners struggle to name beyond 4 or 5. Go on, test yourself!
Why is this important? Well, the Principles are not simply best practice. They are fundamental to the delivery of legal services, how the profession is regulated, and how it is perceived by the public.
If you ever have the need to speak to the Professional Ethics team or an SRA relationship manager, they are likely to use the Principles as a starting point when deciding whether there has been a breach of the rules.
Say for example you are deciding whether to enter into a new arrangement with a referrer. Before looking at the general requirements of the Outcomes, your first step should be to ask yourself whether the arrangements would offend any of the 10 Principles (e.g. loss of independence; not in every client’s best interests; not entirely lawful)?. If it does, the arrangement is a non-starter.
Eyes and Ears
The Code of Conduct makes it clear that, whilst the COLP and COFA are responsible for ensuring compliance with the rules, everyone has a part to play. In effect, staff are the eyes and ears of their Compliance Officers, and as such it is their duty to spot and if necessary report breaches.
To do that effectively, comprehensive training in all areas of SRA compliance is necessary and should be towards to the top of the COLP and COFAs to-do list. It should arguably also form a part of the induction and appraisal processes.
It would perhaps be unreasonable to expect staff to memorise the 80 or so Code of Conduct Outcomes and their associated guidance. But they must understand those Outcomes, be able to relate them to the core Principles, and generally know their way around the rules and any of the firm’s policies which are directly applicable.
They should also know when to report and who to go to with questions, which is sometimes best suited to a written policy on reporting risks and breaches. Some firms also find that an open door policy, or a policy of “no guilt” for errors and breaches properly reported, encourages staff to put their hand up when things go wrong.
Taken together, this approach will give the COLP and COFA confidence that they will be alerted to breaches as they occur, and will help provide evidence to the SRA that they are putting in place effective compliance systems.
Have you received particularly good (or bad!) compliance training from an external provider? We are always interested to hear your thoughts and recommendations, email us at info@jonathonbray.com.
