The regulatory body for solicitors and law firms in England and Wales (the Solicitor Regulation Authority) has historically received and then taken forward for investigation more complaints about Black, Asian, and minority ethnic solicitors than about White solicitors. What explains these patterns? And what can be done to address them?
The Solicitor Regulation Authority (the SRA) has long seen an overrepresentation of Black, Asian, and minority ethnic solicitors in their enforcement process. These disproportionate complaints against minority professionals, however, are not unique to the SRA and are widely seen across many regulators and sectors, including the General Medical Council (GMC), the National Police Chief’s Council (NPCC), and the Nursing and Midwifery Council (NMC).
In the SRA’s case, the overrepresentation of Black, Asian and minority ethnic solicitors is particularly evident at the first stages of the enforcement process. These solicitors are overrepresented among the complaints the SRA receive about potential misconduct. A disproportionally higher number of complaints are submitted about these solicitors than White solicitors, with 22% more reports than one would expect given the comparative populations. Black, Asian and minority ethnic solicitors are also overrepresented among the cases the SRA take forward for investigation following their initial assessment, resulting in more complaints about Black, Asian and minority ethnic solicitors being formally investigated.
Over the years, the SRA has commissioned several independent reviews to look at these important issues. Although these reviews provided useful recommendations which have helped the SRA to shape (or reshape) their approach to enforcement, the overrepresentation of the Black, Asian and minority ethnic solicitors in the SRA’s enforcement process remains an open issue.
In a research project in collaboration with Lancaster University and Cardiff University, funded by the SRA we adopted a multi-method, multi-stakeholder approach to better understand and address this troubling issue. The research unit at the School for Business and Society of the University of York included Professor Claudia Gabbioneta, Professor Daniel Muzio, Professor Philip Garnett, and Dr Alison Glaister.
Our initial review of existing research found that very little work has been done on this issue. We therefore decided to broaden our review to include studies that looked at factors that increase the likelihood of either misconduct being committed or of complaints about potential misconduct being made. We then conducted a large-scale statistical analysis of the complaints received by the SRA and those that they take forward for investigation to understand what characteristics make solicitors more likely to engage in misconduct, potentially leading to more complaints about them being submitted. We complemented the quantitative evidence with 24 semi-structured interviews conducted with solicitors practicing in England and Wales. To provide evidence of the factors that can increase the likelihood of complaints about potential misconduct being made, we conducted an online survey of actual and potential legal service customers. Finally, to further shed light on the overrepresentation in complaints taken forward for investigation, we interviewed 15 SRA employees working in the enforcement unit.
The results of these analyses enabled us to recommend actions that can support the SRA in addressing the overrepresentation of Black, Asian, and minority ethnic solicitors in their enforcement process.
Understanding Overrepresentation
Potential explanations for the overrepresentation of Black, Asian, and minority ethnic solicitors in the SRA’s enforcement process
Our literature review revealed two potential explanations for the overrepresentation of Black, Asian and minority ethnic solicitors in the SRA’s enforcement process, which are likely to be interdependent and may have a reinforcing effect on each other.
First, Black, Asian and minority ethnic solicitors may be more likely to engage in misconduct as they are more exposed to individual, organisational, and case-related factors that increase the likelihood of misconduct. For example, they may be more likely to work in small law practices that lack the necessary administrative support, resulting in more mistakes being made. Or they may be more likely to have to take on a high number of cases, leading to an increase in burnout and stress-related oversights.
Second, Black, Asian and minority ethnic solicitors may be more likely to be reported because of biases in those making complaints. Customers may be more likely to attribute potential misconduct to the internal characteristics of Black, Asian and minority ethnic solicitors and, consequently, to report them, whereas customers are more likely to attribute misconduct by White solicitors to situations or events outside the solicitor’s control, making customers less likely to report them.
Factors Increasing the Likelihood of Misconduct
We tested the first explanation through a large-scale statistical analysis of the complaints received by the SRA and those that they take forward for investigation. Our analyses revealed that overrepresentation was due to several factors at the individual, organizational, and case level, which individually and in combination led to a higher likelihood of misconduct. Additional interviews confirmed the relevance of the identified factors and offered invaluable insights into the potential mechanisms linking these factors to misconduct.
Factors Increasing the Likelihood of Being Reported
We tested the second explanation through an online survey of actual and potential legal service customers. Our results did not support the idea that potential misconduct is more likely to be attributed to a solicitor’s internal characteristics when it involves Black, Asian, and minority ethnic solicitors and to external factors and events when it involves White solicitors. Nonetheless, we found that certain groups of customers are more likely than others to report potential misconduct: it remains an open question whether these customers are more likely to be associated with Black, Asian, and minority ethnic solicitors.
Factors Increasing the Likelihood of a Complaint being taken forward for investigation
To shed further light on the overrepresentation in complaints taken forward for investigation, we conducted 15 semi-structured interviews with SRA’s employees working in the enforcement unit. These interviews revealed that, while formal procedures and protocols are generally followed, there is a widespread awareness that some cases are more “borderline” or “less than clear cut” than others, requiring a certain level of individual judgement.
Addressing Overrepresentation
The analyses we conducted enabled us to provide a set of recommendations about actions that the SRA can take to address the overrepresentation of Black, Asian and minority ethnic solicitors in their enforcement process.
The SRA should provide further support and guidance to solicitors in one-partner and small firms, as solicitors in these firms are more likely to engage in misconduct. They should also reconsider the role of contextual factors and mitigation in the assessment process, as these may unwittingly favour White solicitors. Finally they should continue to engage with the profession, including Black, Asian, and minority ethnic solicitors and their representative groups to identify potential ways to address the factors identified as relevant when considering overrepresentation.
We argue that these actions could help address the overrepresentation of Black, Asian, and minority ethnic solicitors in the SRA’s enforcement process, potentially reducing inequalities within the UK legal profession.
