Written by The recent decision by the Solicitors Disciplinary Tribunal (SDT) to revoke the Solicitors Regulation Authority’s (SRA) rebuke of solicitor Liam Connolly has sparked important questions about regulatory enforcement, solicitor conduct, and the boundaries of without prejudice privilege. While the SDT ultimately deemed the rebuke disproportionate and found Mr Connolly’s breach to be a mistake, the case highlights the need for clearer standards and transparency in legal negotiations.
The Context
At the centre of the case was a settlement offer made to a client who had raised service complaints. The terms of the offer included a provision addressing “any regulatory action,” which the client interpreted as an attempt to discourage her from reporting the solicitor to the SRA. While Mr Connolly promptly revised the offer when the client raised concerns, the SRA adjudicator rebuked him, concluding that the initial terms breached rule 7.5 of the Code of Conduct, which prohibits solicitors from preventing individuals from reporting to regulators.
On appeal, the SDT overturned the rebuke, citing errors in the adjudicator’s reasoning. The tribunal found that aggravating factors had been overstated and that the breach resulted from a genuine mistake, quickly remedied without harm or dishonesty.
Clarity vs. Ambiguity in Legal Practice
The SDT accepted Mr Connolly’s explanation that the problematic clause and his subsequent email were unintentional errors rather than calculated attempts to prevent a client from reporting. However, this raises broader questions about the responsibility of solicitors to ensure precision and transparency in their communications.
Solicitors are trained professionals, expected to draft documents that are both clear and compliant with regulatory obligations. While mistakes can and do occur, the inclusion of terms addressing regulatory action in settlement offers—even unintentionally—risks creating an appearance of impropriety. This case serves as a reminder that solicitors must exercise heightened caution when crafting settlement terms, especially when engaging with vulnerable or dissatisfied clients.
The Use (and Potential Abuse) of Without Prejudice Privilege
The without prejudice rule is an essential legal principle that allows parties to negotiate freely without fear that their discussions will be used against them. However, this privilege is not a shield for including terms that might dissuade clients from exercising their rights.
While the SDT found no evidence that Mr Connolly deliberately misused without prejudice privilege, this case underscores the fine line between legitimate negotiation and clauses that could be perceived as restrictive or coercive. Regulators must provide clear guidance on what constitutes acceptable use of without prejudice communications to prevent ambiguity and protect clients.
Regulatory Oversight and Public Trust
The SDT’s decision raises important questions about proportionality in regulatory enforcement. On one hand, the tribunal’s detailed reasoning demonstrates its commitment to fairness and procedural accuracy. On the other hand, the decision may give rise to perceptions that the profession is lenient in addressing potential breaches, particularly those involving power imbalances between solicitors and their clients.
Public trust in the legal profession depends on consistent and transparent enforcement of ethical standards. Even minor breaches of the rules must be addressed in a way that reassures clients and the public that solicitors are held to account for their actions. In this case, the SDT concluded that Mr Connolly’s actions were not sufficiently serious to warrant a rebuke, but regulators must tread carefully to ensure that such decisions do not undermine confidence in the system.
Key Takeaways for the Profession
- Precision in Communications: Solicitors must ensure their settlement terms are unambiguous and fully compliant with professional conduct rules. Provisions addressing regulatory actions should be avoided unless their inclusion is both necessary and transparently explained.
- Mitigating vs. Aggravating Factors: This case highlights the importance of balancing mitigating and aggravating factors in regulatory decisions. While prompt rectification and remorse can mitigate breaches, regulators must also consider the broader impact on public trust.
- Guidance on Without Prejudice Privilege: The SRA should consider issuing clearer guidance on the ethical use of without prejudice privilege in settlement offers to reduce the risk of confusion or misuse.
- Regulatory Consistency: The legal community should engage in dialogue about the proportionality of sanctions and how to ensure fairness without diluting accountability.
Conclusion
The SDT’s decision to revoke Mr Connolly’s rebuke demonstrates the importance of proportionality in regulatory enforcement but also serves as a reminder of the profession’s responsibility to uphold the highest ethical standards. Solicitors must remain vigilant in their use of language and privilege, ensuring their actions reflect both the letter and the spirit of the rules.
This case presents an opportunity for regulators and the profession to reflect on how to strike the right balance between fairness to practitioners and the need to maintain public confidence. Clearer guidance and robust enforcement mechanisms will be key to achieving this balance.
What’s your perspective on the SDT’s decision? Does it strike the right balance, or does it risk undermining accountability in the profession?
Disclaimer
This article reflects the author’s opinion and interpretation of the facts surrounding the SDT’s decision to revoke the SRA rebuke. It is not intended as legal advice and should not be relied upon as such.