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 was known as the “Twinsectra” test arising from the House of Lords decision in Twinsectra Ltd v Yardley and Others (2002).
On 25 October 2017 The Supreme Court held in Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent)  UKSC67 that the test previously applied does not correctly represent the law and should no longer be applied.
The test for dishonesty is now that set out at paragraph 74 of the Ivey Judgment, namely:
“When dishonesty is in question the fact-finding Tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
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 off 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”.
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My matter was referred to the SDT for a 3 day hearing and at that stage I just wanted to give up, but Jon’s wise counsel stopped me from doing so and I am so glad I followed his advice.
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