On 27 September 2023 the Solicitors Regulation Authority published a “warning notice” for solicitors carrying out immigration work, causing some alarm within the sector. Specifically, concerns were raised about the SRA stating that solicitors should be taking steps to authenticate a client’s account and evidence, without any further explanation of what is expected. The notice included a statement that failure to have proper regard to the notice may lead to disciplinary action. In light of those consequences, it is obviously important that solicitors are able to understand exactly what is required of them.

In light of these concerns, I contacted the Solicitor Regulation Authority (SRA) by email on 27 September 2023 and had a call with them on 2 October 2023. I followed up that call with a list of questions. Since then we have had no further contact from them, despite chasing.

As we have said previously, the shutting down of any firm that takes advantage of people with insecure immigration status is something to be welcomed. However what most of the sector needs is not a warning but some clear guidance from the regulator on how we can help to tackle the problem of lawyers who are in breach of their regulatory duties and, in some cases, criminal law.

In the absence of being able to publish an explainer of what the sector can do to help with this issue, I have instead set out the issues I think arise from the SRA statement, along with the questions that the SRA have been asked that remain unanswered.

Last year’s thematic review

In last year’s immigration and asylum thematic review, the SRA said that “The duty to report serious misconduct is clear and is not subject to client consent or the duty of confidentiality”. In fact, the duty is not at all clear and there is nothing in the rules that provides an answer or any guidance on what to do in a situation where there is serious misconduct by a previous solicitor and the client expressly withholds consent to make a complaint.

When I spoke to the SRA about this, they said that this issue is subject to some conflicting case law. That position is not reflected in the warning notice or thematic review, or anywhere that I could see. I asked the SRA what was the basis for them stating that the duty is not subject to client consent or the duty of confidentiality. I also asked them what the conflicting case law is and that if the position is in fact unclear why has the SRA said the opposite.

Also in the thematic review the SRA said

“We found that many fee earners said they did not know how to make a complaint to us. This is an issue we will continue to seek to address through further communications and engagement with the profession.”

As they have identified a large part of the problem, namely that solicitors do not know exactly what they are suppose to do, I asked the SRA what communications had been put out since the review was published in November 2022 that address this issue.

I also asked the SRA the following practical points about how a solicitor at Firm A (the current solicitor) could report concerns about Firm B (the client’s previous solicitor who has done something that could amount to a serious breach of regulatory arrangements):

• Where Firm A has concerns about Firm B, what level of detail about the client and their case needs to be provided to the SRA?
• If client data is expected to be sent to the SRA, and the client withholds consent for the complaint to be made, has the SRA considered the applicability of General Data Protection Regulation to this situation?
• If yes, which General Data Protection Regulation exception applies here?
• Does the report still need to be made if the client disinstructs Firm A as a result of them telling their client that they are going to report Firm B to the solicitors regardless of their consent?

The thematic review contained the following case study:

Case studies are generally useful. This one is not. In cases involving survivors of trafficking, the relationship of trust and confidence between client and lawyer is particularly crucial so as to enable disclosure of difficult experiences. What the SRA is proposing seems highly likely to damage the relationship between solicitor and client, which could then affect Mrs Y’s ability to make a successful claim.

It appears that the SRA is proposing that Firm A go behind their client’s back and renege on their promise not to make the complaint now. This would make the SRA’s stated obligation to report even worse. However, regardless of whether that promise had been made, the client’s instructions are unambiguous. The SRA should have been explicit about where in the Code of Conduct the duty to report the conduct of a previous firm irrespective of the instructions of a client originates.

Further, the case study is unhelpful in explaining what solicitors should do in cases where there are not these additional vulnerabilities. Remember that this guidance does not only apply in asylum cases.

I asked the SRA the following, the second situation being one that many lawyers will be familiar with:

• What is Mrs Y was a person with no mental health issues but otherwise the same facts? Is the SRA guidance that a complaint must still be made by Firm A?
• What if she was being supported by her community, and Firm B is part of that community, meaning that the client will not consent as she is concerned about it affecting that support? Would this affect the duty?

No response has been received.

The warning notice

The warning notice advises solicitors that:

“Where you have reason to doubt it, you should take steps to assure yourself about the authenticity of your client’s account and evidence they provide in support.”

I said to the SRA that this seems to conflate two issues, solicitors actively participating in deceit and where a client may have provided misleading information.

I asked if the SRA is going to provide guidance on where a solicitor may have “reason to doubt” their client’s instructions or what “steps to assure yourself” a solicitor in this position must take. “Reason to doubt” is entirely ambiguous and of no practical use. “Steps to assure yourself” without further explanation appears to impose an open-ended investigative obligation on solicitors. The SRA was also asked to explain what extent of additional work they expect solicitors to do in relation to verifying evidence, some of which may be from overseas. Is a solicitor/firm expected to bear any additional costs incurred?

I also asked the SRA the following:

• The warning notice refers to “based on examples we have seen” of “solicitors potentially advising clients or prospective clients to falsify or fabricate information to support Home Office applications for asylum or leave to remain”. These appear to be in addition to those covered by the Daily Mail, is this correct?
• If yes, what action has been taken against these firms? We obviously know about the closure of the three firms in the Daily Mail article, but this statement seems to refer to earlier cases.
• Can you tell me how many immigration law practitioners or firms have been sanctioned by the Solicitors Disciplinary Tribunal or intervened in by the SRA in the past two years?
• The warning notice refers to solicitors being prosecuted at the Solicitors Disciplinary Tribunal for applying to appeal decisions where there are no merits. Please can you let me know the dates and outcomes of the prosecutions referred to?

No response has been received.

Conclusion

It is becoming increasingly clear that urgent guidance is also needed on solicitors’ obligations and ability to charge privately where they hold a legal aid contract. The Legal Aid Agency, in addition to the SRA, should issue guidance on this matter and how complaints can be made where clients withhold consent.

The questions I have asked should have been considered prior to and addressed in the warning notice, particularly given the length of time since the thematic review, in which we were told that further communications would be forthcoming. Despite this, the SRA has had a month in which to respond to us and has not done so, despite being chased. The conclusion that must be drawn is that they simply do not have answers to these questions and that is not good enough. If the SRA is serious about tackling these important issues then they need to publish better guidance.