The problem

The SRA warns the profession from taking a ‘tick-box approach’ to AML compliance, and yet when it comes to its obligation to safeguard the mental health of solicitors is it guilty of doing just that?

The SRA is statutorily obliged to encourage an independent, strong, diverse and effective legal profession[1] and, arguably, to carry out its activities in a way that supports those it regulates to comply and grow.[2] In partial recognition of that obligation, the SRA has committed itself to carefully balancing the public interest with the interests of individual solicitors. In its Guidance Note, ‘SRA investigations: Health issues and medical evidence’, August 2020, the SRA acknowledges that the regulatory process can be stressful and may trigger health issues. The SRA accepts responsibility in such situations, as, ‘a responsible regulator’ of the ‘need to balance carefully the public interest against the interests of the individual.’

Typically, the SRA’s tools for alleviating the stress of regulatory investigations is limited to ‘signposting’ solicitors to support, and allowing them an extra couple of weeks to respond to SRA communications – do these steps adequately meet the SRA’s obligations when dealing with a solicitor facing up to suicidal thoughts four years into an SRA investigation that has failed to progress substantively?

Missing from SRA literature is any genuine insight into how the conduct of its investigations can aggravate the stress reaction in those it regulates.

While there are several studies exploring the nexus between mental ill health and the workplace, few explore the conduct of regulators as a contributory or determinant factor in workplace stress.

This article explores key changes that the SRA could and arguably should introduce to reduce its contribution to workplace stress.

Stress in the profession

Stress occurs when people perceive that the demands from external situations are beyond their coping capacity (Lazarus & Folkman 1984).

While an acute stress response (see ‘fight or flight’ and ‘adrenaline and noradrenaline’) may keep us sharp, or even alive, chronic activation of the system can lead to psychological stress with emotional and physical effects.

There are several studies on solicitors’ workplace stress, suggesting that we are, ‘surviving but not thriving’, reporting emotional (anxiety, panic attacks, depression) and physical effects (exhaustion and burn out, high blood pressure, heart problems). A Junior Lawyers Division survey of 2019 reported 93% suffering from stress (consistent with a Law Society survey in 2014 of the profession as a whole at 95%), 48% suffering from mental ill health, 34% experiencing physical symptoms and 6% with suicidal thoughts in the last month, see also HSE reports of 2017 and 2020).

Regulatory investigations as a contributory factor

Despite the long list of studies available, it’s rare to see regulatory investigations cited as a contributory factor to workplace stress.

While most solicitors never face a regulatory investigation, a significant minority do (in 2018/2019, the SRA received 1 report of serious misconduct for every 14.3 solicitors – Upholding Professional Standards, SRA 10,500 reports for 150,000 practising solicitors).

Why are regulatory investigations so stressful?

There are many contributory factors that may cause an acute stress reaction in an individual, and consequently give rise to mental and physical health problems, for example:

  • Loss of control, loss of employment, other financial impact (representation), loss of status, humiliation, shame, and uncertainty;
  • The individual’s workplace, for example, support or blame culture, and pre-existing levels of workplace stress; and
  • The personal characteristics of an individual, for example, the profession has been described as replete with ‘perfectionists’ and ‘insecure overachievers’ with ‘imposter syndrome’.

Regulatory Investigations engage with each of these factors, increasing the risk of an acute stress reaction in the individual.

What can the SRA do to mitigate against the risks of mental ill health?

The SRA cannot control all stressors an individual will face during a regulatory investigation. Therefore, in order to determine what practical steps the SRA could take, one must look at the stressors that it does have control of. The SRA is empowered to establish its own rules to meet the regulatory objectives. As such, it is within the SRA’s control to create a fair system by which potential breaches of professional rules are investigated, in a way that balances the interests of individual solicitors.

Without competency, integrity and capacity, the SRA will not be able to achieve a fair system.

  • Strive for greater competency – It is not uncommon to see the SRA’s competence criticised. Recent decisions of the SDT have found SRA investigations to be ‘shambolic’[3] and ‘flawed’[4]. Does a culture of denial and institutional defensiveness prevent lessons being learned?
  • Integrity and fairness – Regularly, in a distinct shift from a decade ago, and despite case law[5], the SRA makes applications to the SDT to recover “its”[6] legal costs even when the entirety of its allegations have been dismissed, and will never concede to make a contribution when a flawed investigation has caused expense and loss to a Respondent solicitor. This is perhaps a natural consequence of the SRA’s often adversarial approach to investigations and prosecutions.
  • Capacity – a lack of, causing delay.

Delay and stress

In Aaron v The Law Society[7], a 2003 case, Auld J said, ‘those responsible administratively and judicially for regulation of the solicitors’ profession should now have the reasonable time requirement of Article 6 in the forefront of their minds in any disciplinary process for which they are responsible… Disciplinary proceedings before the Solicitors’ Disciplinary Tribunal are analogous to criminal proceedings. The uncertainty that springs from and festers with unnecessary and unreasonable delay can, in itself, cause great injustice to practising solicitors, whose livelihood and professional reputations are at stake. Nor does such delay serve the solicitors’ profession as a whole. It is in their interest and that of the members of public whom they serve that their regulatory body and the Tribunal should be prompt, as well as otherwise effective, in the enforcement of the high standards of their profession.’

Despite these strong words, SRA investigations typically continue to take between 6 months and 4 years to complete. In my experience, two-year plus length investigations are frequent in nature. Often there are significant periods of inactivity, typically with no apology, or at best, with an explanation that it was occasioned by a change of staff beyond its control. It is not that unusual to wait for between 6 and 12 months before receiving a substantive SRA response to communications sent to them, typically then requiring a response from the solicitor within 7 to 14 days. The worst cases far exceed these delays.

If a solicitor is thereafter referred to the SDT, typically the SRA does not commence that application for a further six months, despite the plethora of case law on unacceptable delay.

It is a ‘basic tenet that stress originates from uncertainty’.[8] As Peters et al explain, we are hard-wired to resist the tendency to disorder, including to reduce uncertainty, and when that cannot be resisted, that is, as the uncertainty continues, the body enters into a stress response. When the acute stress responses turn out to be insufficient for resolving uncertainty, the critical situation may become chronic, and the brain is burdened by ‘allostatic load’. In this state, the neuroendocrine, cardiovascular, neuroenergetic, and emotional responses become persistently activated so that blood flow turbulences in the coronary and cerebral arteries, high blood pressure, atherogenesis, cognitive dysfunction and depressed mood accelerate disease progression.[9]

In short, uncertainty causes mental ill health.[10]

The SRA can significantly reduce delay, and thus its contribution to mental ill health in the profession, by :-

  • Ensuring it has adequate capacity and competency levels;
  • Acting fairly, in the speed and manner of its investigations and prosecutions; and
  • Conducting a Risk Assessment where there is evidence of ill health among those it proposes to investigate or prosecute.

What you should do if you are facing a regulatory investigation and experiencing stress or mental ill health?

  • If you are having suicidal thoughts, speak to Samaritans day or night on 116 123
  • Speak to Law Care (open during business hours) on 0800 279 6888;
  • Speak to your GP;
  • Speak to those that care about you; and
  • Obtain free regulatory advice from the Solicitors’ Assistance Scheme

Robert Forman is co-author of The Solicitor’s Handbook 2019, currently co-writing The Solicitor’s Handbook 2022 due out at the end of this year.

[1] ss.28 and 1(1)(f) Legal Services Act 2007

[2] Regulators’ Code, Better Regulation Delivery Office of the Dept. for Business, Innovation & Skills, 2014

[3] SRA v Sheikh 11821-2018

[4] SRA v Davies 11909-2019

[5] Broomhead v SRA [2014] EWHC 2772 (Admin)

[6] The SRA typically seeks to recover the costs of its Forensic Investigators at an hourly rate, well in excess of the salary burden falling on the regulator. This is so despite the ruling in R v Northallerton Magistrates’ Court, ex parte Dove [2000] 1 Cr App R (S) 136 (CA) that an order for costs should never exceed the sum which the prosecutor actually incurred.

[7] [2003] EWHC 2271 (Admin) at para.84

[8] Peters et al, ibid

[9] McEwen and Stellar, 1993 as reported in Peters et al, ibid.

[10] Uncertainty and stress: Why it causes diseases and how it is mastered by the brain, Peters. A, McEwen. B, Friston. K, Progress in Neurobiology, Volume 156, September 2017, Pages 164-188