Solicitors Disciplinary Tribunal

Solicitors Disciplinary Tribunal

Solicitors Disciplinary Tribunal

Introduction

The Solicitors Disciplinary Tribunal (SDT) was established under section 46 of the Solicitors Act 1974 to adjudicate upon allegations of professional misconduct by solicitors, registered foreign lawyers and those who are employees of solicitors and to hear applications for restoration to the roll. Its primary remit is to “protect the public and to maintain the reputation of the solicitors’ profession for honesty, probity, trustworthiness, independence and integrity.”

Although it is open to anyone to make a direct application to the SDT, most are made on behalf of the Solicitors Regulation Authority (SRA). The Tribunal does not investigate cases or collect evidence in support of these applications but simply reaches a decision based on the evidence put before it by the parties to the matter. Whilst the SRA is always legally represented before the SDT, respondents can choose whether to be legally represented or not.

Since the enactment of the Legal Services Act 2007 the Tribunal’s administration and financial arrangements have been managed wholly independently from the Law Society. The Tribunal’s administration is run by company limited by guarantee – Solicitors Disciplinary Tribunal Administration Limited. It has been held to be an impartial tribunal for the purposes of Article 6 of the European Convention on Human Rights.

The SDT has the power to strike off a solicitor from the roll, suspend a solicitor from practice or fine or reprimand a solicitor, and whilst it cannot make an award of compensation it can make an award of costs. Whilst over 90% of all cases brought before the SDT are brought by the SRA, it is open to anyone to bring a matter before it.

The SDT has jurisdiction over solicitors, former solicitors, registered foreign lawyers, registered European lawyers, recognised bodies and their members, managers of a recognised body who are not solicitors and those who are employed or remunerated by recognised bodies or recognised sole practitioners.

The SDT currently consists of just over 50 members, approximately two-thirds of whom are solicitors, and each individual tribunal will be made up of two solicitors and one lay member.

The SDT is permitted to take evidence on oath and can, operating through the High Court, issue witness summonses to compel the attendance of witnesses. Orders of the SDT, when files with the SRA, may be enforced as if they were orders of the High Court.

Thus, a matter will be likely to be referred to the SDT if, for example:

  • there is evidence that the conduct was pre-meditated, repeated, systematic or otherwise dishonest,
  • the solicitor abused a position of authority or trust,
  • a client’s or other person’s interests have been seriously compromised, or
  • any victim of the misconduct was vulnerable,

whilst it is less likely that the matter will be pursued if:

  • the SDT is likely to impose a nominal penalty,
  • the misconduct resulted from a genuine mistake,
  • the solicitor is elderly and no longer practising, or
  • the solicitor was suffering from significant mental or physical ill health at the time of the misconduct – unless the misconduct was serious or may be repeated.

Referrals to the SDT

Most referrals to the Solicitors Disciplinary Tribunal (SDT) come from the Solicitors Regulation Authority, although this is by no means the only route by which a matter may be referred and it is open to anyone to make an application. For example, for the year ended 30th April 2011, of the 227 applications made to the SDT, 4 of were made directly from members of the public.

Referral by the SRA

The SRA will only refer a matter to the SDT if it passes two tests:

  1. the evidential test – i.e. there must enough evidence to provide a “realistic prospect” that a solicitor will be found guilty of misconduct – in other words that the SDT is more likely than not to make a finding of misconduct; and
  2. the public interest test – i.e. a finding of misconduct is likely to lead to a fine, suspension, striking off or other power vested in the SDT and their are no pubic interest factors which would weigh against that course of action.

Thus, a matter will be likely to be referred to the SDT if, for example:

  • there is evidence that the conduct was pre-meditated, repeated, systematic or otherwise dishonest,
  • the solicitor abused a position of authority or trust,
  • a client’s or other person’s interests have been seriously compromised, or
  • any victim of the misconduct was vulnerable,

whilst it is less likely that the matter will be pursued if:

  • the SDT is likely to impose a nominal penalty,
  • the misconduct resulted from a genuine mistake,
  • the solicitor is elderly and no longer practising, or
  • the solicitor was suffering from significant mental or physical ill health at the time of the misconduct – unless the misconduct was serious or may be repeated.

Full details of the basis and criteria for referral to the SDT will be found in the Code for Referral to the Solicitors Disciplinary Tribunal on the SRA website.

It should be noted that a decision by the SRA to refer a matter to the SDT is not in itself a finding of misconduct – the finding, if any, will come from the SDT itself. For this reason it is not possible for someone who has been referred to appeal against that referral.

Application to the SDT

An application to the SDT will be made in the form specified by the rules and must be supported by a statement which sets out any allegations together with the facts supporting the application and each allegation contained in it. Any document which is referred to in the statement needs to be exhibited to it. In the case of an application by the SRA, they will compile a Statement of Allegations and send this to the SDT.

The application should be lodged with the Clerk to the SDT, who will then determine whether or not there is a prima facie case to answer.

The procedure at the SDT is governed by the Solicitors (Disciplinary Proceedings) Rules 2007.

If there a case to answer then a “pre-listing day” date will be set and the respondent will be informed of that date and served with copies of the application and supporting papers. The respondent is also provided with a questionnaire to be completed and returned to the SDT’s Listing Officer in advance of the pre-listing day. The pre-listing day is when the respondent will enter a plea, dates agreed and the estimated length of the hearing determined.

The respondent will not normally be required to attend the pre-listing day provided they have fully completed and returned the questionnaire to the SDT in advance. It is vital in the interests of the respondent that they return the questionnaire – especially if they do not plan to attend the pre-listing day, so that sufficient time can be allowed for the substantive hearing and so that the hearing is not arranged on a date when the respondent cannot attend.

An application can also be made in respect of a person who is employed or remunerated by a solicitor. Section 43 of the Solicitors Act 1974 allows the SRA (as the delegated body of the Law Society) to make an application to the SDT for an order controlling the employment of such a person and the SDT can make an order which gives the SRA control of the future employment of an individual clerk in a solicitor’s practice. Whilst the Order remains in force any solicitor wishing to employ the clerk must first obtain the written consent of the SRA before they can do so. Note however that it is only the SRA who can bring an application in respect of persons employed or remunerated by a solicitor.

The SDT also has the power to restore to the Roll the name of a former solicitor whose name has been struck off. In such a case the application must be supported by an affidavit setting out details of the original Order, give the full employment history of the applicant since the Order was made and should set out the applicant’s intentions as to future employment within the profession.

It should be noted that an application to restore is not an appeal against the original decision to strike off – merely an opportunity for the applicant to show that they are now a fit and proper person to have their name restored to the Roll.

When reaching a decision as to restoration the SDT will take account of various issues including:

  • the time that has passed since the original striking off occurred – it is unlikely that an applicant will be restored to the Roll within six years of the original Order;
  • whether the applicant can show they have been rehabilitated and that they have been employed in the intervening period (preferably in a legal environment);
  • the future intentions of the applicant and whether another solicitor would be willing to employ them were they to be restored to the Roll;
  • whether the applicant can demonstrate that they have made a sustained effort to meet any liability to the Compensation Fund and, where appropriate, that the effort will continue in the event of restoration;
  • whether there has been a criminal conviction recorded against the applicant involving dishonesty (or whether there was a finding of dishonesty by the SDT) – this can constitute an all but insurmountable obstacle to a successful application for restoration.

Thus a solicitor seeking restoration must prove both his or her fitness to be a solicitor and that restoration would not adversely affect the good name and reputation of the solicitors’ profession nor be contrary to the interests of the public.

The Hearing

Normally a hearing before the SDT will held in public although the SDT does have the power to consent to all or part of the case being heard in private.
In order to ensure that the actual hearings are as short as possible, often Tribunal members will read the allegations in advance of the hearing and the parties to the hearing will be encouraged to agree as much as possible before the hearing takes place. In order to help expedite matters further, the SDT rules provide that the applicant can require the respondent to indicate which matters of fact are disputed. All applicants are encouraged to give this indication so as to avoid increased costs.

Either party may appear before the tribunal or may appoint a person to represent them. The SRA will normally use solicitors in private practice selected from a panel to make the applications for them and to appear on their behalf at the hearing. In appropriate cases Counsel may be instructed to appear for either party.

It is open to either party to call witnesses and evidential procedures are similar to those to be fund in the High Court. Strict rules of evidence do not, however, apply.

The respondent need give no formal answer to any allegations that are made, although it is usually advisable for at least a written statement to be submitted so that if the Tribunal is reading through the papers prior to the hearing then they will have an idea about the respondents case. Indeed, in a complex case the Tribunal may even order that a detailed answer be provided so that the issues may be identified. Parties are also expected to disclose in good time all documents upon which they intend to rely and to co-operate with each other in relation to evidence and statements.

If the respondent fails to appear at the hearing the SDT may deal with the matter in his or her absence, although a re-hearing may be possible if there was a good reason for the non-attendance.

Hearings may be adjourned or postponed provided that a valid reason exists. The SDT has issued guidelines as to when such a request for an adjournment would usually not be accepted and these include:

  • the existence or possibility of other proceedings arising from the same facts unless there is a genuine chance that those other proceedings would be prejudiced,
  • conflicting appointments,
  • lack of readiness,
  • illness evidenced by a doctor’s sick note, and
  • financial difficulties

Normally the SDT will announce its findings at the end of the hearing and, if there is a finding against the respondent, will usually give details of the sanction it intends to impose. Detailed findings and reasons may be provided at a later date – although usually within 8 weeks. Any order which is made takes effect as soon as it is filed with the Law Society – thus if there is a finding leading to a suspension or striking off there may need to be a stay pending an appeal.

Details of any findings and orders will be published on the SRA website.

Powers and costs in the SDT

The powers of the SDT are set out in section 47 of the Solicitors Act 1974 (as amended). This provides that, except in the case of applications under sections 42 and 43 of the Act, the Tribunal:

“shall have power to make such order as it may think fit, and any such order may in particular include provision for any of the following matters:

(a) the striking off the roll of the name of the solicitor to whom the application or complaint relates;
(b) the suspension of that solicitor from practice indefinitely or for a specified period;
(ba) the revocation of that solicitor’s sole solicitor endorsement (if any);
(bb) the suspension of that solicitor from practice as a sole solicitor indefinitely or for a specified period;
(c) the payment by that solicitor or former solicitor of a penalty, which shall be forfeit to Her Majesty;
(d) in the circumstances referred to in subsection (2A), the exclusion of that solicitor from providing representation funded by the Legal Services Commission as part of the Criminal Defence Service (either permanently or for a specified period);
(e) the termination of that solicitor’s unspecified period of suspension from practice;
(ea) the termination of that solicitor’s unspecified period of suspension from practice as a sole solicitor;
(f) the restoration to the roll of the name of a former solicitor whose name has been struck off the roll and to whom the application relates;
(g) in the case of a former solicitor whose name has been removed from the roll, a direction prohibiting the restoration of his name to the roll except by order of the Tribunal;
(h) in the case of an application under subsection (1)(f), the restoration of the applicant’s name to the roll;
(i) the payment by any party of costs or a contribution towards costs of such amount as the Tribunal may consider reasonable.

It should be remembered, however, that the SDT may make such order “as it may think fit”. Therefore, although not specifically referred to in the list above, the SDT may also reprimand the solicitor or order that the solicitor be censured.

So far as section 43, this applies to a person who is or was employed or remunerated by a solicitor in connection with his practice but is not himself a solicitor. Here, the only order which may be made is an order that:

“as from such date as may be specified in the order no solicitor shall, except in accordance with permission in writing granted by the Society for such period and subject to such conditions as the Society may think fit to specify in the permission, employ or remunerate, in connection with his practice as a solicitor, the person with respect to whom the order is made.”

Section 42, meanwhile, which relates to failure to disclose the fact of having been struck off or suspended, carries with it a mandatory sanction, and thus there is no discretion which the SDT may exercise.

Where the SDT orders a fine, that fine is paid to the Treasury.

Costs

The SDT is able to make such order as to costs as it thinks fit and can order such payment of costs or a contribution towards costs as it considers reasonable. This can even include the costs of the Law Society’s Investigation Accountant. In some cases it may order costs not to be enforced without leave of the Tribunal. Each case is different and will be decided on its own facts.

The Tribunal does not award compensation. However, if following a Finding by the Law Society of inadequate professional services on the part of a solicitor, the Law Society makes a Direction that compensation be paid, the Tribunal may order that such Direction be treated for the purpose of enforcement as if it were contained in an Order of the High Court.

Contact us

If you have a query concerning powers and costs in the SDT and wish to contact us, you can:

  • phone on 0333 888 4070;
  • email on help@lawyersdefencegroup.org.uk;
  • request a callback using the form in the right hand menu and someone will call you back at a pre-arranged time; or
  • write to the Lawyers Defence Group at one of the two addresses at the foot of this web page.
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