The Solicitors Regulation Authority has published two reviews as part of their ongoing work in the sector, one is a review of asylum legal services and the second a review of training records. These reviews contain some important points and should be read carefully by solicitors working in immigration and asylum. Both reviews refer at least once to the problematic ‘warning’ issued to law firms last year, of which there are many still unanswered questions.  

Asylum legal services

The first review is a thematic review of asylum legal services which covers engaging with clients, supervision, continuing competence and safeguarding professional standards and ethics. For this review, the regulatory body visited 25 firms, including legal aid providers and sole practitioners, and reviewed 64 files. No issues requiring referral into the disciplinary system were uncovered during the review.

The review says that on average firms rejected around 10 per cent of cases brought to them. This appears to be on merits grounds rather than due to capacity, where there are presumably a lot more rejections.

The majority of the files reviewed were for clients who were eligible for legal aid, however many were paying privately. Presumably those paying privately were at firms without a legal aid contract. The review records that 18 of 25 firms reported that clients “had chosen to pay for it privately, even though they would have been eligible for Legal Aid. This was because the perception of Legal Aid-funded work was that it was of a lower quality”.

This perception is of course not the case and I am surprised that so many firms admitted this given it is a simple matter to explain that this is incorrect. I have personally had many a conversation with clients where I explain the additional level of accreditation and exams that legal aid lawyers need to do, as well as the quality audits, that private lawyers are not subject to. In every case, this has completely allayed any concerns.

Later on in the review, the SRA does state that: “It is important for firms and solicitors to dispel such misconceptions to protect the public interest by making sure asylum clients can access legal services” and that “It is good practice for fee earners to record in attendance notes and in the initial client care letter the reasons why, despite being eligible for legal aid, a client has chosen to pay privately for legal services.”

The bigger problem is of course the lack of capacity in the sector which the regulatory body refers to as “anecdotal” which seems a little unnecessary given the wealth of evidence available. These paragraphs seem to downplay the capacity crisis and instead emphasise the quality concerns as the main reason that people are choosing to pay privately, which I very much doubt is the case, or certainly shouldn’t be if legal aid is explained properly to people.

It is good to see the SRA acknowledge the importance of meeting clients face to face, given the issues that have been experienced with the Legal Aid Agency on this point. Concerns were raised about the use of Whatsapp in the absence of “formal policies or approaches in place governing the use, storage or filing of data shared in this way, and how work can be properly supervised”.

The SRA said that they did not see any evidence of legal advice being given over Whatsapp but if that is done then the advice must be recorded in the client’s file. Concerns were also raised about solicitors’ personal mobile phones being used to communicate with clients, not least because of the potential impact on work/life balance.

Policies should be put in place and the SRA has helpfully set out a list of matters to be covered in such a policy. The use of the browser version of Whatsapp was referred to as an example of good practice.

There were issues with the use of interpreters, both with those using them and those not. In particular, the SRA noted that it was “poor practice” to have a consultant or interpreter bring a case to the firm, and to then have that person being allocated the case to work on. Firms who do not use interpreters and turn people away solely based on what language they speak risk breaching their professional responsibilities (in particular SRA Principle 6: the need to act in a way that encourages equality, diversity and inclusion).

There was also an issue with a lack of information on file to reflect that supervisors or heads of department were maintaining the claimed close level of oversight of files. Only 62% of files had evidence of supervision on them, the explanation from firms seemingly being that face to face supervision was taking place without notes then being placed on file. It is good practice to ensure that there is evidence of any supervision on every file.

The sector still seems to be failing its lawyers when it comes to vicarious trauma, with “very few” firms providing their solicitors with training or support in dealing with cases where they are regularly exposed to trauma. It is important to remember that sector specific resources are available and should be far more widely used.

Training records review

For their “Practising immigration and asylum law solicitors training records review” the SRA contacted 60 immigration and asylum firms between January and October last year, asking for their training records. They received 143 training records and almost half of the solicitors had recorded more than 10 (easily achievable for Free Movement podcast listeners!).

Solicitors used a variety of approaches to identify their learning and development needs, including where a change in law had been identified and on receipt of feedback from others. A number of approaches were used to meet those needs, including attending webinars and reading newsletters, case law and relevant policy and legislation.

The SRA described record keeping as “variable”, with excellent training records described as those that:

• demonstrating that reflection was ongoing
• comprehensively describing how the individual had reflected and identified their learning and development needs
• clearly explaining the activity carried out and how it addressed the identified need
• showing how the learning will be applied
• whether the activity carried out identified further learning and development needs.

The records that were lacking were those where there was no evidence of why the learning and development was required or whether the activity had addressed the need that had been identified. The SRA is carrying out additional follow up with these solicitors and firms to ask what is being done to ensure and maintain competence.

So while the SRA reiterates that “It is not a regulatory requirement to keep a training record of document reflection”, in reality it is clear that they do want people to do precisely that. They go on to say that “A failure to record reflection raises concerns that not all needs are being identified and addressed.” Solicitors who are not already doing so would be well advised to use the SRA’s template unless they already have something similar in place.

Conclusion

The above is a summary of both reviews but is no substitute for reading them both properly, which all solicitors should do as soon as possible and make changes where needed.

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