Public interest or private club?

As we awaited the results of the Law Society’s absurdly long investigations into whether Allen & Overy (A&O) and Freshfields Bruckhaus Derigner had breached the conflict of interest rules, I became aware of a potentially ludicrous situation.

If the Law Society had decided that yes, the firms had breached the rules, but no, the breaches were not serious enough to merit a referral to the Solicitors’ Disciplinary Tribunal (SDT), the two firms would have received a private rebuke. This would have put the Law Society in a difficult position, given the fact that Legal Week had reported the existence of these investigations.

Imagine the scenario. A reporter rings the press office to be politely informed that the investigations had been completed, but that the Law Society was unable to divulge the results.

In the event, this scenario never arose. The Law Society decided to exonerate A&O for its role in the Safeway takeover saga, while it did refer two senior Freshfields partners to the SDT (see story). But that does not stop the existing rules being completely out of date.

What on earth is the point of an investigation into a solicitor if the findings are not made public? For example, it is currently possible for a solicitor to have a condition placed on his or her practising certificate requiring them not to handle client funds but for that condition to remain private.

No wonder the Law Society has been forced to separate its trade union and regulatory functions. Sure enough, the newly-formed Solicitors Regulatory Board has issued a consultation paper on whether “reprimands against solicitors, especially those concerning misconduct, may be made public”.

No prizes for guessing which way this one will swing...