Issuing Solicitors Disciplinary Tribunal proceedings

Introduction

Purpose and status of this document

We explain in this document the test to be applied when making decisions to issue proceedings against regulated individuals and firms before the Solicitors Disciplinary Tribunal (SDT).

We investigate issues which represent a serious or persistent breach of our regulatory requirements and which are capable of resulting in regulatory action. At the conclusion of any such investigation, we can decide to close the investigation, take regulatory action ourselves (for example by issuing a rebuke or a fine of up to £2,000) or issue disciplinary proceedings before the SDT.

This guidance should be read in the context of decision making at the SRA and other guidance documents. It is a living document and will be reviewed and updated as appropriate. It reflects our approach to our regulatory role and any departure must be capable of justification on the individual facts of the case.

Proceedings before the SDT

The SDT is an independent tribunal which has its own powers and procedures. It has some powers which we do not. In particular, it can prevent a solicitor from practising by suspending them indefinitely or for a fixed period, or permanently striking them off the Roll. It can also impose an unlimited fine. These powers are set out in Section 47 of the Solicitors Act 1974 and described in the SDT's guidance note on Sanctions.

The SDT impose disciplinary sanctions after making a finding of misconduct. A finding of misconduct is a finding that there has been a breach of our regulatory requirements, namely the rules, regulations or principles which apply to individuals and firms that we regulate. The term 'misconduct' as referred to in this document has the same meaning as that used in the SDT.

We bring proceedings before the SDT, most commonly against solicitors and their employees. However, we also bring proceedings against European and foreign lawyers regulated by us, firms, and their owners and managers. We may decide to bring proceedings against both individuals and their firm where appropriate in the public interest.

We have set out the process for how we make decisions to bring disciplinary proceedings in Rule 10 of the SRA Disciplinary Procedure Rules 2011. In summary, Rule 10 provides we may make an application to the SDT when we are satisfied that:

  • there is sufficient evidence to provide a realistic prospect that the application will be upheld by the SDT
  • the SDT is likely to revoke a firm's authorisation or to impose a penalty that we are unable to; and
  • it is in the public interest to make the application

Rule 10.2 provides that we will apply rule 10.1 in accordance with a code for referral to the SDT. This guidance note comprises our code for referral.

Test for decision to issue proceedings

Evidential test

We must be satisfied that there is enough evidence to provide a realistic prospect that the regulated person will be found to have committed misconduct.

We will consider what the regulated person's case is and how that is likely to affect our case against them.

A realistic prospect of a finding of misconduct is an objective test. It means that an impartial and reasonable SDT panel hearing the case, properly directed and acting in accordance with the law, is more likely than not to make a finding of misconduct against the regulated person. In doing so, the decision-maker will take into account the fact that the SDT apply the criminal standard of proof. In other words, the SDT only finds allegations proven beyond a reasonable doubt: Namely, when they are sure the circumstances and facts were as alleged.

In deciding whether there is enough evidence to meet the realistic prospect test, we will consider the evidence in our possession and any further evidence that we will be able to obtain. This is because we may request further information or documents after the decision is made, in order to present the case more fully at the SDT. We may also gather further evidence to deal with points raised in defence of the proceedings. We will consider whether the evidence can be used and is reliable.

We will give appropriate weight to the evidence we have and consider whether it can be further strengthened. For example, more weight is likely to be attached to direct evidence from someone about what they said or did than to indirect or hearsay evidence from a third party. Similarly, an official transcript will carry more weight than an unofficial one.

If the evidential test is not satisfied then the case cannot proceed to the SDT.

Example 1

During an investigation involving a solicitor, we interviewed a complainant and took a note of his evidence. The complainant alleged that the solicitor had misled the court, by signing a statement purporting to be from him without his permission and submitting it to the High Court. However, as the investigation progressed, the complainant decided that he no longer wished to assist us. He refused to sign the witness statement we had prepared for him. We decided not to rely on his witness statement in support of the proceedings and, therefore, not to proceed with that particular allegation. As the statement was not signed and the witness would not attend, the SDT would be unlikely to place much, if any, reliance on the complainant's evidence.

Seriousness

Proceedings are issued before the SDT in the most serious cases. Accordingly, in every case in which the evidential test is satisfied, we go on to consider the seriousness of the misconduct. We will consider whether, in order to address the risk to consumers or the need to provide credible deterrence to the regulated person or others, the case is likely to require a penalty which we would be unable to impose, but which the SDT is able to.

Therefore, we will consider whether any of the allegations against a solicitor would, for example, require them to be struck off the roll in order to protect consumers of legal services and maintain public confidence.

Where we are considering concerns relating to a number of individuals or firms, and we decide that some, but not all, of the allegations are likely to require such a penalty, we may decide that it is appropriate for the SDT to consider the allegations in the round. This may lead us to ask the SDT nonetheless to consider the whole case against one, or all, of the parties.

When deciding how serious misconduct is, we weigh in the balance aggravating and mitigating factors. A list of such factors is set out below. They are not intended to be exhaustive.

Some of the factors are more important than others and are likely to carry more weight. The weight to be attached to each factor will vary according to the facts of each case. It is quite possible that one factor may outweigh a number of other factors which tend in the opposite direction.

Factors in favour of issuing proceedings

Proceedings are more likely when there is evidence that:

  • The behaviour was dishonest or lacked integrity.
  • The behaviour was pre-meditated, repeated or systematic.
  • The regulated person abused a position of authority or trust.
  • A client or other person's interests have been seriously compromised.
  • Any victim of the misconduct was vulnerable.
  • The behaviour would tend to damage, or bring into disrepute the delivery of legal services or the operation of the courts or legal system.
  • The regulated person has been convicted of a criminal offence, unless minor.
  • The misconduct involved unlawful discrimination.
  • The regulated person has a poor disciplinary or regulatory history.
  • There are grounds for believing that the misconduct is likely to be continued or repeated.
  • There has been significant financial loss to clients or others.
  • The regulated person has failed to cooperate with us.
  • The regulated person has shown a lack of insight into their behaviour.

Example 2

A solicitor was conducting personal injury cases for several of his clients. He failed to lodge claims in court within the time limit and they became statute barred. The solicitor misled his clients by informing them that he had lodged claims and that he had attended court on their behalf. He also wrongly paid money from his firm's client account to those clients, having told them that he had received damages on their behalf, when he had not. We took proceedings against the solicitor at the SDT for misleading and dishonest behaviour. He was struck off the roll.

Factors against issuing proceedings

Proceedings are less likely when there are factors which suggest that the misconduct is less serious, or where consumers and the public interest can be protected using our in-house powers. For example:

  • The regulated person was at the time of the misconduct suffering from mental or physical ill health which contributed towards the misconduct, unless there is a real possibility that it will be repeated.
  • The regulated person has co-operated fully with us, in particular correcting the problem.

Example 3

There was evidence that a solicitor had failed to supervise his firm properly, failed to comply with accounts rules and had failed to co-operate with us. He produced medical evidence that at the time of the misconduct and during the investigation he was suffering from a stress-related illness. He was no longer practising as a solicitor and had decided to retire from the profession. A decision was made not to pursue the solicitor before the SDT, but instead deal with the matter by way of our internal disciplinary powers.

Public interest test

Before a decision is made to issue proceedings, we also need to be satisfied that such proceedings are required in the public interest.

Factors to be considered include;

  • The need for the matters to be heard at a public hearing, for example, to promote public confidence and accountability. This might be the case where the matter raises particularly grave, novel or unusual issues.
  • The need to resolve material disputes over the facts, or test the evidence, through oral evidence from the regulated person or witnesses. This is likely to be required where the matters turn on the credibility of a witness. This will also be the case where the regulated person's state of mind is key to the case, such as in allegations of dishonesty.
  • The proportionality of issuing proceedings, bearing in mind the length of time which has elapsed between the misconduct and the date of making the decision to issue proceedings. However, lapse of time will not generally prevent the issue of proceedings if one or more of the following apply:
    • the misconduct is serious
    • delay has been caused in part by the regulated person
    • the misconduct has only recently come to light
    • the complexity of the issues has meant that there has been a long investigation.
     
  • Whether issuing proceedings will be disproportionate when weighed against the likely penalty to be imposed by the SDT. The cost of proceedings alone will never be decisive and it is essential that regard is had to all relevant factors identified.
  • Whether the regulated person is currently suffering from mental or physical ill health such that proceedings would have a seriously harmful effect on their health or would impact on the person's right to a fair hearing.