How to decide if something is a breach 

Think about whether something has happened which is, or seems to be, contrary to any of the STaRs.

What to do if you think there is a breach

Usually, a breach is first reported to the firm’s COLP or COFA and they consider whether a report is necessary.  If an individual reports to the COLP or COFA, their obligation to report to the SRA is considered satisfied.  Responsibility then rests with the COLP/COFA to consider the details and decide whether it’s necessary to make a report.

A serious breach must be promptly reported to the SRA.  A breach that is not serious must still be recorded by the COLP/COFA, together with reasons why it was not considered serious, because a pattern of repeated or similar minor breaches can constitute a serious breach at a later date.

If there is a breach, it can provoke discussion within a firm about whether the breach is classed as serious, because of the potential ramifications for the firm or individual that has breached the STaRs. It’s vital that the COLP/COFA is able to make the decision independently, to fulfil their duty to the SRA (which is prioritised over a duty to the firm).

If it is a breach, how does one decide whether it is serious?

There is no definition from the SRA.  A COLP/COFA must make their own decision and be prepared to justify it if it is scrutinised further down the line. 

It is helpful to refer to the SRA’s published Enforcement Strategy, within the section ‘When to Report’. The guidance doesn’t give examples, but does say:  “It is important that solicitors and firms let us know about serious concerns promptly, where this may result in us taking regulatory action. We do not want to receive reports or allegations that are without merit, frivolous or of breaches that are minor or technical in nature – that is not in anyone's interest. We do want to receive reports where it is possible that a serious breach of our standards or requirements has occurred and where we may wish to take regulatory action.”

Although missing a definition, the Enforcement Strategy makes it clear that some allegations will inherently be seen as more serious. They include allegations of abuse of trust, taking unfair advantage of clients or others, or misuse of client money. Further examples are sexual or violent misconduct, dishonesty, discrimination, harassment and criminal behaviours.  There are many more factors that come into play, and you can access the enforcement strategy here: SRA | SRA enforcement strategy | Solicitors Regulation Authority 

How do I report a breach to the SRA?

There isn’t a required format for a report by a firm about an internal breach.  The SRA does have a form available on its website for reports by the public.  For a report from a COLP/COFA, it’s important to provide as much information as possible to help the SRA decide whether an investigation is necessary.

Ongoing Monitoring

COLPs and COFAs must keep records of breaches and reasons for their decisions.  A register of breaches (serious or otherwise) should be kept and a regular review of the breaches should be undertaken.  Again, there is no specific format for the register but there must be sufficient detail for a meaningful review to take place. 

COLPs and COFAs should periodically report to the Managers so that everyone is kept informed. Responsibility for compliance still rests with all the Managers of the firm, and consideration needs to be given by them about how to support effective compliance. 

How can Beal Cooper Compliance Ltd help?

With previous experience as a COLP, Carolyn Beal is able to provide practical guidance to firms.  We can provide a template register of breaches, or a template report for submitting to the SRA.  We are also able to work with a COLP and COFA to review the register and help prepare a report to the firm’s Managers.  Please contact us for more information.