Lawyer Disciplinary Processes: An Empirical Study of Solicitors’ Misconduct Cases in England and Wales in 2015' by Andrew Boon and Avis Whyte
in (2019) 39(3)
Legal Studies comments
The Legal Services Act 2007 effected major changes in the disciplinary system for solicitors in England Wales. Both the practice regulator, the Solicitors Regulation Authority, and a disciplinary body, the Solicitors Disciplinary Tribunal, were reconstituted as independent bodies and given new powers. Our concern is the impact of the Act on the disciplinary system for solicitors. Examination of this issue involves consideration of changes to regulatory institutions and the mechanics of practice regulation. Drawing on Foucault’s notion of governmentality, empirical evidence drawn from disciplinary cases handled by the SDT and the SRA in 2015 is used to explore potentially different conceptions of discipline informing the work of the regulatory institutions. The conclusion considers the implications of our findings for the future of the professional disciplinary system.
The authors argue
The influence of regulation on individual behaviour is a theme of Foucault’s work on the transition in criminal sanctions from physical punishment to confinement. He observed that the introduction of the prison provided the opportunity to use novel technologies of surveillance. He argued that the techniques of hierarchical observation, normalising judgment and their combination in assessment procedures, which he called ‘the examination’ pervade social institutions aiming to affect individual subjectivity. Foucault’s theory of governmentality proposes that the self-regulation of the subject using such techniques, aims to negate the need for external regulation. Their manifestation in both state regulation and attempts to instil self-government on the population is particularly marked in initiatives across liberal and neoliberal economies. Institutions aim to normalise conduct conducive to enterprise, thereby affecting individual self-identity and subjectivity. Foucault argued that three factors determine the character of systems of social discipline, the system’s underlying purposes, its social institutions and the available technology of regulation, is particularly relevant to the regulation of what was, until 2007, a professionalised legal services market.
The LSA effected fundamental change in the first two of Foucault’s three factors, philosophy and institution. The philosophy was set out in the first section of the Act declaring, inter alia, the regulatory objectives of promoting competition and the consumer interest. The institutional changes made by the LSA were intended to reflect a de-regulatory agenda. The central thrust was abolition of the regulatory role of professional self-regulating organisations. A number of new regulatory institutions were therefore created. These included a Legal Ombudsman (LeO) to receive complaints against all regulated lawyers and a government agency, the Legal Services Board (LSB), answerable to government for achieving the Act’s regulatory objectives. The levers of changes to practice regulation were in the hands of new ‘front line regulators’ constituted independently of the professional bodies. A key mechanism of change was the LSB’s oversight of and influence over these institutions. Those responsible for the three main areas of regulation for solicitors, the largest legal profession in England and Wales, were the Solicitors Regulation Authority (SRA) and the Solicitors Disciplinary Tribunal (SDT). The SDT was constituted as a professional institution in 1974 to hear misconduct allegations against individual practitioners. It changed little after the LSA, being relatively insulated from the LSB’s influence. Its raison d’etre is, however, potentially at odds with the rationale of the LSA and the regulatory direction taken by the SRA. This increasingly reflects a changing logic of regulation.
Freidson identified three regulatory logics and their complementary mechanisms: professionalism (collegial control of markets in a spirit of public service), perfect competition (a free market with minimal regulation) and corporate bureaucracy (maximising the advantages of effective management). The SRA’s regulatory strategy has gradually moved away from the policies of professionalism towards those promoting competition and corporate bureaucracy. In terms of practice regulation, however, the forum for the ‘modernisation’ of legal services regulation is the modern law firm. The main focus has been on a process of ratcheting up the responsibility of law firms for regulation, exemplified by a
rule book that addresses the employing organisation rather than the individual lawyer. This
development was anticipated by strand of the legal ethics literature which advocated building
the ‘ethical infrastructure’ of conventional law firms as a way of addressing lawyer misconduct.
The legal office is also viewed as a site of control of the individual in the
organisational theory literature, where more subtle mechanisms of control are described.
Brown and Lewis argue that processes of observation, normalisation and examination, processes identified by Foucault as features of modern disciplinary systems, are particularly effective in legal workplaces. Routines such as time recording potentially define the identity of workers even in sectors, such as the professions, characterised by collegiality and relatively autonomous work places. Through the process of normalisation the individual accepts subjection to their work role and consequent limitations on their autonomy. In this approach to regulation ‘[d]isciplinary power is not, or not just sporadic and spectacular, but regular and monotonous... the mundane, everyday, repeated patterns of activity which characterize processes of (self) organizing’. The ability of institutions to perform a disciplinary function by affecting the behaviour of the individual employee depends on their capacity to provide more effective surveillance and control of regulated populations. The legal services market in England and Wales comprises different spheres of solicitors’
practice. A broad division between corporate and ‘private plight’ clients, recognised in the
literature, is the basis of very different firm structures. Sole practitioners and small firm
tend to operate in the private plight sphere and their partners are over-represented in the SDT.
This is a challenge to a system of regulation based on theories of governmentality.
This article explores the development of the regulatory system of solicitors following the LSA. Our account begins by exploring the evolution of the regulatory system following the Act. We argue that the shift in the SRA’s regulatory strategy towards corporate bureaucracy presents different concepts of discipline in the post-LSA regulatory regime. The themes of regulation and governmentality are examined using empirical data on the role of the SRA as a practice regulator and prosecuting authority and that of the SDT as adjudicator. In conclusion we consider how the nature of risk associated with particular activities of the regulated
population might determine tools of governance.19 We also consider whether the SDT, in some ways a surprising survivor of the LSA revolution, performs a necessary function. As a remnant of a professional regime representing the physical, public and ceremonial dimensions of discipline, it arguably sits uneasily in a system based on neoliberal theories of regulation.
