Turning concern into action

The Society has developed new guidance to assist members who are concerned that clients may be at risk or who have a suspicion about a breach of the Code of Conduct. This is in addition to the “whistleblowing” processes that exist under the Public Interest Disclosure Act 1998.

This new process gives solicitors and others a safe route through which potentially serious matters can be raised, which currently may not be picked up as quickly. The emphasis is on a safe and direct route to making a report to the regulatory team. A key consideration has been that it should not create heightened obligations on solicitors, who already have significant professional responsibilities. The Financial Compliance team will lead on co-ordinating the appropriate action in response.

Professional approach

Inherent in the definition of a professional is an obligation to put clients’ and patients’ interests first. As a result, a number of other professions have developed specific guidance on this for their members.

For example, the GMC Good Medical Practice Guidance for Doctors (www.gmc-uk.org) states: “You must protect patients from risk of harm posed by another colleague’s conduct, performance or health. The safety of patients must come first at all times. If you have concerns that a colleague may not be fit to practise, you must take appropriate steps without delay, so that the concerns are investigated and patients protected where necessary.”

The Standards for Dental Professionals (www.gdc-uk.org) state: “If you believe that patients might be at risk because of your health, behaviour or professional performance, or that of a colleague, or because of any aspect of the clinical environment, you should take action”.

The Solicitors Regulatory Authority has introduced specific requirements in its Statement on Whistleblowing (www.sra.org.uk).

While providing processes to allow anyone who has concerns about a regulated law firm or individual to provide information and intelligence to it, specific additional obligations are imposed on compliance officers for legal practice (COLP) and compliance officers for finance and administration (COFA), requiring them to report any failure to comply with the terms and conditions of their authorisation.

Restatement of duties

The new guidance is designed to provide a consolidation of members’ current duties and obligations in relation to “raising concerns”. The Law Society of Scotland Practice Rules 2011 and Standards of Conduct include acting with honesty and personal integrity at all times, acting in the best interest of clients, and carrying out work with competence, diligence and the appropriate skills.

Rule B1.4 imposes a duty on members to put the interests of their clients first before their own or those of their firm. Rule B.10 requires members to have the relevant legal knowledge and skills to provide a competent and professional service, to be thorough and prepared in all their work, and only agree to work for a client when they can do so adequately and competently within a reasonable period of time. Members have therefore a responsibility to raise any concern that clients might be at risk because:

• of the professional performance of an employer or colleague;
• of any aspect of the work environment; or
• of being asked to carry out any action that conflicts with the duty to put clients’ interest first. Where possible, members should raise concerns first with their employer or manager. However, this may not always be appropriate or possible, where, for example, the employer or manager is the source of the concern.

When the concern relates to the Practice Rules, members can raise it with the Society. To report a concern, contact Ian Messer, Director of Financial Compliance (direct line: 0131 226 8897; email: ianmesser@lawscot.org.uk). His department will discuss the issue with the caller and assess the appropriate response. In some cases, it may be appropriate to encourage callers to report matters directly to other agencies, or the Society may choose to do this. For example, in a case involving credible allegations regarding the safety of client money, the information will be used to assess whether a financial compliance inspection should be prioritised. At the same time, it may be appropriate to submit a suspicious activity report to the National Crime Agency. For non-financial concerns, it may be appropriate to liaise with other agencies such as the Health & Safety Executive.

In many cases it is foreseen that it won’t be possible or necessary to provide feedback to a whistleblower on how a matter has been dealt with after their initial call. This could be because of the confidential nature of the steps which might be necessary.

Ian Messer commented: “This new process gives solicitors and others a safe route through which potentially serious matters can be raised, which currently may not be picked up as quickly. Financial Compliance will then take a lead on co-ordinating the appropriate action in response.”

The Society still maintains a distinct separation between reporting a breach of standards or rules, and the role of the Professional Practice team in giving advice about professional standards or rules. Where a solicitor does not necessarily wish to raise a formal concern, but is unsure about what they might do next, the Professional Practice team remains a confidential resource for members should they wish to discuss concerns or worries. Calls to the team can be anonymous and will not (unless there is a direct admission of criminal conduct) generate a report to the Society’s regulatory arm.

Other sources

The Public Interest Disclosure Act 1998 gives protection to employees (and self-employed) who raise genuine concerns about potentially illegal or dangerous practices at work. This includes criminal acts, someone breaking a legal obligation, a miscarriage of justice, danger to health and safety or the environment, or a cover-up of any of the above. This protection applies as long as the person:
is acting in good faith;

• honestly and reasonably believes that the information and any allegation in it are substantially true;
• is not raising concerns mainly for the purpose of personal gain;
• and has taken steps to raise concerns first with the employer (unless reasonably believing that they would be victimised if they did so, or reasonably believing a cover-up is likely or the matter is very serious).

There are a number of possible sources of help and advice, including LawCare (www.lawcare.org.uk), Public Concern at Work (www.pcaw.org.uk), and the Health & Safety Executive (www.hse.gov.uk).

Coral Riddell, head of Professional Practice, acknowledges that taking a decision to raise a concern can be uncomfortable.

She says: “My team are here to help members work through those challenges and assist them in coming to a decision. The team won’t make the decision for you, or make a report on your behalf.

“The reality is that when these situations arise, there is rarely a clear or perfect solution. Nevertheless, the positive value I take from the guidance, is the message it sends around culture: the message that our professional culture supports and expects to see core values of honesty and integrity being upheld and embedded in our businesses by all of the profession, no matter their status, influence or experience.”