A letter from the SRA seeking an “Explanation with Warnings” is a crucial part of the disciplinary process.
The solicitor is usually given 14 days to prepare a response.
The Solicitors response to the EWW letter will need to be considered, coherent and consistent with any explanation the solicitor will give if the case reaches the Solicitors Disciplinary Tribunal.
Great care should be taken in drafting the response and not to aggravate the situation.
The response to the EWW letter will form the basis of any defence a solicitor has throughout the investigation stage and before the Solicitors Disciplinary Tribunal (if the matter is referred for formal disciplinary proceedings).
It is crucial that expert legal advice is obtained prior to submitting a response to the EWW.
The Solicitors Disciplinary Tribunal consists of both solicitors and lay members appointed by the Master of the Rolls.
The SDT is empowered to make Rules about the procedure and practice to be followed in relation to the making, hearing and determination of applications and complaints, currently the Solicitors (Disciplinary Proceedings) Rules 2007 (“the Rules”).
The SDT may make appropriate practice directions consistent with the Rules and provide for cases to be determined by divisions or panels of two solicitors and one lay member.
Proceedings before the SDT are regulatory in nature and not criminal.
The SDT has been found to be an independent and impartial Tribunal for the purposes of Article 6 ECHR.
Upon the hearing of an application the SDT has the power, in relation to solicitors, to make such order as it thinks fit and any such order may in particular include the following;
- the striking off the Roll of the name of the solicitor to whom the application or complaint relates,
- the suspension of that solicitor from practising indefinitely or for a specified period,
- the payment of a fine of an unlimited amount which shall be forfeit to Her Majesty,
- the termination of a solicitors unspecified period of suspension from practice,
- the restoration to the Roll of the name of a former solicitor whose name had been struck off the Roll and to whom the application relates, and
- the payment by any party of costs or a contribution toward the costs in such amount as the Tribunal may consider reasonable.
Following a referral to the SDT by the SRA proceedings will be drafted by either an in house advocate in the Legal Department of the SRA or an external solicitor instructed by the SRA to prosecute cases.
The person commencing the proceedings whether in house or external is known as the Applicant.
The Applicant will prepare the originating process which is known as the Rule 5 Statement (arising from Rule 5 of the 2007 Rules).
The Rule 5 Statement sets out the allegations and facts relied upon against the solicitor who is termed the Respondent.
Following the Rule 5 Statement and supporting documents being lodged with the SDT, the papers are initially considered by a solicitor member of the Tribunal who certifies whether a “case to answer” is made out against the Respondent.
If the solicitor member is not minded to certify that there is a case to answer, or if, in his/her opinion, the case is one of doubt or difficulty, the Application must be considered by a Panel of three members of the Tribunal, at least one of whom must be a solicitor member and one a lay member.
If the decision is not to certify that a case to answer is established, the Application must be dismissed.
The concept of “a case to answer” is very similar to that of a “prima facie case”.
It does not involve the determination of factual issues. The test involves consideration of whether a finding of guilt could be made on the basis of the facts as alleged in the prosecution case. It is a low threshold.
The Applicant may file supplementary statements containing additional allegations, facts or matters upon which the Applicant relies. The permission of the Tribunal is required in order to lodge a supplementary statement no later than 12 months after the date of the application or less than 30 days before the date fixed for the hearing.
It is entirely preferable for all allegations to be set out in the original Application.
The SDT operates Case Management principles supported by Practice Directions.
Following certification of a case to answer, the Standard Directions require a Respondent to file an Answer to the Application stating which allegations, (if any), are admitted, and which, (if any) are denied by the date specified in the standard directions. Denials must set out reasons.
Respondents are also required to file and serve any documents upon which they intend to rely at the substantive hearing.
A failure to file and serve an Answer or to comply with any of the directions may leave the Tribunal drawing an adverse inference, excluding evidence which has not been filed and served or making an adverse costs order.
It is essential that the Tribunal’s directions and procedures are complied with in full and in a timely manner. If the Respondent wishes his or her means to be taken into consideration by the SDT in relation to possible sanction and/or costs there are requirements for providing Statement of Means.
The Civil Evidence Acts 1968 and 1995 apply to proceedings before the SDT in the same way that they apply to civil proceedings.
The hearing will be held in public.
The SDT is entitled to proceed in the Respondents absence in appropriate cases if satisfied that notice of the hearing has been served on the Respondent in accordance with the Rules.
A Respondent who fails to give oral evidence and submit himself to cross examination may find such failure is taken into account by the Tribunal when reaching its decision.
In the case of Igbal the Court expressed the view that ordinarily the public would expect a professional person to give an account of their actions and that in appropriate cases adverse inferences may be drawn from a solicitors failure to do so.
The SDT must make a finding as to whether any or all of the allegations have been substantiated. If allegations are found to be proved, the Respondent is entitled to make submissions by way of mitigation in relation to sanction and costs.
The Tribunal announces its decision on the day, although has the ability to reserve its decision for announcement at a later date, if appropriate.
As soon as is practicable, the SDT must deliver detailed written findings to the Applicant and the Respondent, to include its reasons and conclusions upon the evidence before it.
The SDT is required to file its signed order with the Law Society.
It is the practice of the SDT to apply the criminal standard of proof, namely beyond a reasonable doubt.
The SRA’s position is that this is wrong in principle.
The Courts have declined an invitation to clarify the position, although recently the Court has expressed the view that now may be the time for a reconsideration of the position.
The standard of proof currently applied by the Tribunal remains the criminal standard. This is important.
In Law Society –v- Waddingham (in which I appeared for the Respondent) the criminal standard of proof was applied to the question of whether or not the solicitor in question had acted dishonestly in circumstances in which there was no dispute as to the primary fact. It meant that although the Court concluded that the solicitor had probably been dishonest, that was found to be insufficient to support the finding of guilt having regard to the criminal standard, in other words, sure that the solicitor had acted dishonestly.