Disciplinary Processes

Solicitors Regulation Authority

Regulatory or conduct outcomes

The SRA states that in addition to a risk based system for assessing the steps to be taken in response to a regulatory breach that it also follows a propertionate response in terms of an actual outcome from the conduct alleged. The term which it has used on many occasions is a light-touch regulator, although for many who fund themselves on the wrong end of a conduct outcome, this may seem something of a moot point.

There are a number of outcomes to which a particular act of misconduct may give rise and this section will look at these. Broadly speaking the types of disciplinary outcome which you may face as a result of an act of misconduct or alleged misconduct are:

  • Casework decision,
  • Letter of advice,
  • Finding and Warning,
  • Reprimand or severe reprimand,
  • Enter into a regulatory agreement
  • referral to the Solicitors Disciplinary Tribunal,

In addition, although not merely a disciplinary sanction but also a means of protecting the public, the SRA can:

and these will be dealt with elsewhere on this web site.

Casework decision

Within the SRA the handling of allegations of misconduct or dishonesty are handled by staff known as caseworkers whose role is to assess the misconduct or dishonesty alleged, gather evidence and to make the appropriate decision as to how the matter is to be progressed, e.g. whether to close a file or whether to refer the matter to an adjudicator for a formal decision to be made.

If the caseworker decides that no issue of professional conduct arises or if having looked into the matter there is no evidence that any misconduct, breach or act of dishonesty has taken place, then that caseworker may choose to close the file with out the matter having been passed to an adjudicator. NO further action is then likely to be taken unless further evidence arises that misconduct or dishonesty has taken place.

Letter of Advice

A letter of advice is the lowest level of sanction that can be applied by the SRA and is used if there has (or there is suspected to have been) a minor or technical breach of the rules of professional conduct. For this to be considered to be an appropriate outcome the following criteria need to be considered:

  • there must have been a low impact in terms of the effect of the breach, in other words no damage or distress should have been caused,
  • there must also be a low possibility that the breach in question will be repeated
  • whether reimbursement or an apology (as appropriate) has been offered to any other party involved
  • whether the breach has come to an end, and
  • where it is possible for it to be measured, that the breach was relatively short-lived

The form which a letter of advice takes is usually for a letter to be written by the caseworker expressing disapproval of the conduct in question but not taking the matter any further than that.

Examples of where a letter of advice would be the appropriate remedy could include:

  • an inadvertent breach of confidentiality,
  • breach of, or failure to perform, an undertaking which has subsequently been put right and where no, or minimal, damage or loss has been occasioned to the party to whom the undertaking was given
  • failing to carry out a conflict check at the outset of a matter where a conflict has arisen but has been subsequently rectified

There is normally no right of appeal against a letter of advice.

Finding and warning

A finding and warning is one step up from a letter of advice and is issued not by a caseworker but by an adjudicator making a formal adjudication in a matter. The finding in question is that on a balance of probabilities a breach has occurred and the warning is that should there be any future btreach it may be taken into account.

It is usual for there to be an order for costs when there is a finding and warning. For first-instance decisions, costs are currently fixed at two levels – ?600, and ?1,350 with an option to charge more or less in exceptional cases. There is usually a right of appeal which must be lodged in writing within 14 days of the date of the decision letter stating clearly the reasons for disagreement with the decision of the SRA.

Findings and warnings are used for those breaches of the rules which are not serious but which have a moderate impact and/or there is a low to moderate chance that the breach will be repeated. However, the breach must be no longer continuing and they tend not to be used where there is a history of this kind of breach by the solicitor or there are a significant number of breaches outstanding.

Examples of circumstances where a finding and warning would be appropriate include:

  • delay, or failure, in reporting another solicitor for misconduct under the terms of Rule 20.06 (subject to the type of conduct not reported)
  • Failure to advise a client to seek independent advice before making a gift to a solicitor in contravention of rule 3.04 (subject to the amount of the gift)
  • delay in honouring an undertaking given in requisitions on title in a conveyancing matter

Whilst the existence of a finding and warning may be taken into account in future disciplinary investigations and decisions, there is no other public consequence and they are not, unlike more severe sanctions, published on the SRA web site and are generally a matter between the parties involved.

Reprimands

Reprimands can take two forms, a reprimand or a severe reprimand, and they are sanctions which are imposed upon solicitors by an adjudicator.

A reprimand is likely to be issued where there has been a breach, or a series of breaches, which are considered to be serious or likely to be repeated. Serious for these purposes means that there have been (or could have been) serious consequences or a series damage or loss occasioned to another person as a result of the breach, or there is a high risk that the breach will be repeated or the breach is deemed to have been either intentional or reckless.

Whilst the SRA does not as a general rule do so at this time, it is open to it at some time in the future to publish reprimands and severe reprimands on its web site and indeed, provided that it considers that it is in the public interest to do so, may publish any information which it chooses to publish. For the SRA’s current policy on the publication of regulatory decisions see their policy statement Publication of regulatory and disciplinary decisions

Normally when a reprimand is issued this can be regarded as the end of a matter – in other words unless it has expressly been stated that further enquiries are being made which could result in a further sanction being imposed, then the reprimand will draw a line under the conduct in question. However, do bear in mind that the right to make an application to the Solicitors’ Disciplinary Tribunal does not belong solely to the SRA – any other person aggrieved by the decision to issue a reprimand, for example, could make an application. Furthermore, if having been issued with a reprimand the solicitor continues with the course of conduct which lead to that reprimand, a referral to the SDT could be made, in which case the original reprimand could be taken into account by the SDT when deciding upon a suitable penalty.

Regulatory Agreements

A regulatory agreement is an agreement by the SRA to settle a disciplinary matter, either by means of a settlement agreement which relates to the whole of a matter or by means of an issue agreement whihc decides a particular aspect – for example compensation – without concluding the matter

Agreements should be seen as a regulatory decision by the SRA, the terms of which have been accepted by the solicitor. They will normally:

  • be in writing
  • state the facts
  • identify any failings which are admitted by the solicitor
  • identify any actions which the solicitor has taken, or has agreed to take
  • identify any sanction imposed by the agreement
  • be published on the SRA web site unless it is expressly agreed that they will not be

Normally agreements will only be entered into wher the integrity of the solicitor is not in question and where it is certain that the solicitor will comply with any steps to be taken. Failure to do so by the solicitor is likely to lead to a reopening of the matter to which the agreement related.

Referrals to the SDT

Although not strictly a disciplinary process, the last point to be considered in this section is referrals to the Solicitors Disciplinary Tribunal.

If the SRA believe that it is in the public interest to do so, and if they also believe that there is a realistic prospect that a solicitor will be found guilty of misconduct, then the SRA has the right to refer a matter to the SDT, a body which is entirely independent of the SRA and which has jurisdiction over solicitors, former solicitors and all other persons who are, or have been, remunerated by a solicitor, registered European lawyer or registered foreign lawyer in connection with a legal practice.

Please note that although there can be an appeal against a decision of the SDT, there is no right of appeal against a decision to refer someone to the SDT since it is an administrative process not a sanction. You should however be aware that referral to the SDT is one of those matters which the SRA will normally publish on its web site, notwithstanding the fact that until there has been a decision by the SDT – which may take many months – there is no finding of guilt. The SRA state that in the event that a person is found not guilty of misconduct by the SDT they will remove an entry from their web site, however there are many who are opposed to the publication in the first place since it can have implications upon the solicitor’s practice which may not be undone by the removal of such a notice.

The SDT is dealt with in more detail in the disciplinary section of this web site.