Interpreting the New SDT Rules Introduced on 25th November 2019

On 25th November 2019, the new Solicitors (Disciplinary Proceedings) Rules 2019 (SDPR 2019) came into force. From the outset, it is important to note that for any matters certified as demonstrating a case to answer on or before 24th November 2019, the older SDPR 2007 rules will apply; the new rules will only apply to certified cases after this date.

The changes are intended to reflect changes in how disciplinary handling has evolved since 2007 and to simplify the process. Ed Nally, President of the SDT, stated, “The changes reflect a complete review and overhaul of the previous version. In many areas, the rules will be familiar to those who appear regularly before the Tribunal, but in others, there are changes which I believe will be welcome and a practical improvement for all users of the Tribunal”.

What are the changes to the SDPR?

Given the stated aim of simplifying the rules, it is notable that the SDPR 2019 has more pages and Interpreting the New SDT Rules Introduced on 25th November 2019sections (51 vs 23) than its predecessor. Some of the key changes made include:

A new ‘Overriding Objective’

One of the additions to the new rules is a clear overriding objective of the SDPR (section 4 ). The objective includes handling cases justly and at proportionate cost, dealing with each party to the proceedings on an equal footing, resolving cases “efficiently and expeditiously”, and handling matters in a manner proportionate to the “nature, importance and complexity” of the case. This set of additions in, and of, themselves do not represent a significant shift in policy, but they do underpin the explicit intention of the SDT to keep matters progressing as quickly as possible and without unnecessary wastage of resources.

Changing the standard of proof

Undoubtedly the headline change on page 6 of the rules is the switch from the criminal standard of proof, to the civil standard. In April 2019, the Law Society expressed disappointment on behalf of its members, stating that the change is likely to increase the number of referrals to the SDT and a corresponding likelihood of miscarriages of justice against individual solicitors. The change was, however, welcomed by the SRA as a “matter of public confidence”. It should be pointed out that this shift towards the civil threshold is not new in the regulatory world. The General Medical Council (GMC) recommended this change back in 2007.

Seeking a defence if you are subject to the new SDPR 2019 rules

The scope of the changes of the SDT’s new rules are wide-ranging and, especially in the case of the change of standard of proof, may lead to an increase in disciplinary cases and, correspondingly, sanctions being made. For those solicitors in their early careers, the fear of facing disciplinary action and the impact this may have on their future job prospects can be deeply worrying.

By lowering the bar for solicitors facing disciplinary action, the SDT and SRA are pushing to raise the confidence of the public in the legal profession. One could reason this will only undermine confidence, especially if the number of complaints increases. Professor Richard Moorhead, chair of law and professional ethics at University College London disagrees, “It’s a good move. It says that the regulator is acting in the public interest. If something serious has gone wrong then that person needs to be brought before the SDT”. This may come as cold comfort for practising solicitors subject to disciplinary proceedings. If this is the situation you face, it is vital to remain objective and seek expert advice at an early stage.

Despite the changes, even with the most challenging of cases, with the optimal defence strategy, stringent knowledge of the new rules, and thorough collation of evidence, it should be possible to move the balance in your favour. With a likely increase in case volume, the SDT will likely be keen to expedite as many cases as it can, where it believes doing so is proportionate to the allegations made. As such, if you are facing a disciplinary hearing, seeking an Agreed Outcome as early as possible may provide the best route to a proportionate, cost effective and satisfactory outcome, especially given the 28-day window for doing so.

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