Dishonesty in Solicitors Disciplinary Tribunal proceedings
Any solicitor facing an allegation of dishonesty in the SDT should seek specialist advice as soon as possible. The law is clear that, save for exceptional circumstances, a finding of dishonesty will result in striking off.
In SRA –v- Sharma (in which I appeared for the SRA in the SDT) the Court imposed a striking off in circumstances where the SDT were wrong to think the circumstances were exceptional. The Court held that the “necessary and normal penalty for proven dishonesty is striking off, save in exceptional circumstances”.
It is often the case that solicitors who delay seeking expert advice and representation generally, and in particular, in respect of dishonesty cases may well have strengthened their position by seeking early advice as to the steps to be adopted.
The test for dishonesty in SDT proceedings is known as the “Twinsectra” test arising from the House of Lords decision in Twinsectra Ltd –v- Yardley and others (2002) it is a two stage test which requires the Tribunal to establish that:
- the Respondents conduct was dishonest by the ordinary standards of reasonable and honest people (the objective test) and,
- the Respondent realised that by those standards his conduct was dishonest (the subjective test).
Character references can be very important and are relevant to questions of credibility and propensity.
A solicitor facing an allegation of dishonesty should consider obtaining character references and whether to call a character reference in person at the hearing.
If you are facing an allegation of dishonesty I can advise you on the type of character references to obtain and the contents of those references.
Reasons For Striking Off
The reasons for striking a solicitor of the Roll following a finding of dishonesty are set out in the leading and often cited case of Bolton –v- The Law Society (1994); in which Sir Thomas Bingham, the then MR said,
“It is required of lawyers practicing in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness….. Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proving dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors….. if a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. A decision whether to strike off or to suspend will involve a fine and difficult exercise of judgement, to be made by the Tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the Tribunal be likely to regard as appropriate any order less severe than one of suspension”.
The Court went on to explain in Bolton that in addition to the need to punish in appropriate cases, there was an additional purpose in imposing sanction namely,
“…. the most fundamental of all: to maintain the reputation of the Solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession’s most valuable asset is its collective reputation and the confidence which that inspires”.