Thematic review of standards in sector finds room for improvement, including with firms' record keeping
New from the Solicitors Regulation Authority (SRA) last week was an in-depth thematic review of standards in the immigration and asylum sector, published together with two new guidance notes.
The SRA's immigration and asylum thematic review can be read online here. In the wake of the review, the SRA released important new guidance for immigration work here and general guidance on effective supervision here. All firms in the sector should familiarise themselves with this new guidance. One of the key messages that came out of the review was that much more awareness of SRA guidance was needed.
In undertaking its thematic review, the SRA said the purpose was to better understand the challenges facing different segments of the immigration and asylum legal sector and to investigate the nature, extent and impact of any concerns.
Three key themes were examined by the review: the quality of services provided; supervision of those providing services; and complaints and reports of misconduct.
Methodology for the review ranged from a short questionnaire sent to 70 firms through to onsite visits with 38 firms. For each onsite visit, the SRA spoke with a fee earner and carried out a review of two of their files.
Overall, the SRA found that the quality of service being provided by the sector is satisfactory, though a numbers of areas showed room for improvement. In particular, the SRA found that most fee earners were not aware of the SRA guidance and warning notices relevant to immigration and asylum. Only a small number (18 firms and 15 fee earners) said they were aware of them.
These findings prompted the SRA to update its guidance on immigration and on supervision. The SRA will now be working to promote the new guidance to firms in the sector. "We expect firms to read all our warning notices and guidance, and to take steps to make sure they comply with them," the SRA said. A further thematic review will be carried out by the SRA in 12 to 18 months to assess the impact of the new guidance.
Better record keeping needed
Amongst the findings of the thematic review is that firms needed to have stronger evidence that supervision takes place. Out of the 76 files reviewed by the SRA, only 29 files showed evidence of supervision taking place.
The SRA referred five firms into its internal disciplinary process because it was not satisfied with the supervision of fee earners who were not directly authorised by the SRA.
Stressing the potentially severe consequences for clients due to bad legal advice, the SRA noted: "Solicitors in the immigration sector play an important role in maintaining the effective administration of justice. It is important that they are and remain competent and deliver services that meet the needs of their clients. They must keep their knowledge up to date in a fast-changing environment. Every immigration adviser must have a supervisor who, under our rules, is responsible for making sure that immigration advice provided by individuals they supervise is up to scratch."
Also identified in the thematic review is a widespread failure by fee earners to keep an up-to-date training record. Whilst not mandatory, the SRA notes that a training record is an easy way for fee earners to demonstrate how they are meeting necessary competence requirements.
The SRA said: "[A] significant number [of fee earners] were unable to show us a copy of their training records. Four firms out of 40 (10 percent) were referred into our internal disciplinary process because of this. Solicitors must continually reflect on their practice and undertake regular learning and development, so their skills and knowledge remain up to date. If solicitors do not, this places clients at risk of receiving poor or incorrect legal advice."
The SRA found that better record keeping was needed for discussions with clients on the strengths and merits of a case. "Most firms told us they discussed the strengths and merits of a case verbally, but we did not see evidence of this recorded on all the files we reviewed. … To make sure the firm can be sure they are not pursuing a meritless claim, fee earners should record the strengths and merits of a claim and should regularly reassess this as the case progresses to make sure that they are satisfied that the client still has prospect of success," the SRA said.
On the plus side, the SRA found that all firms or fee earners said clients were given the opportunity and time to review key case documentation. Firms and fee earners also showed a good understanding of what could make a client vulnerable.
When examining issues around complaints and reports of misconduct, the SRA found that most firms complied with the requirements to provide complaints information, though there was a reluctance to report misconduct.
The thematic review notes: "Out of 38 fee earners 14 said they would be very willing to report another firm. This is slightly higher than the number of heads of department who gave the same response. The duty to report serious misconduct is clear and is not subject to client consent or the duty of confidentiality."
One firm was unable to provide complaints information for the files reviewed, and two firms were found to have provided clients with incomplete complaints information. The firms in question were referred into the SRA's disciplinary processes over the failings.
Most firms said they asked clients for feedback every time, but response rates from clients were generally low.
Follow-up actions
The SRA said it will be promoting the learnings from its review with firms who undertake immigration and asylum work, and further resources for immigration practitioners will be produced.
As noted above, a further thematic review will be carried by the SRA on immigration and asylum firms in 12 to 18 months.
SRA chief executive Paul Philip told the Legal Futures website: "Users of immigration and asylum legal services can be some of the most vulnerable people in society. The consequences of poor legal services can be particularly severe, long-lasting, and difficult to rectify for this group. Most solicitors do a good job, and we want to support firms to make sure they meet high standards, including when it comes to maintaining competence. Where we found firms falling short, we took the necessary action to address our concerns and to bring them into compliance with our requirements."