Currently, solicitors who face allegations made against them are subject to investigation and sanction by the Solicitors Regulation Authority (“SRA”). The SRA can rebuke solicitors and fine them up to £2,000.00. In more serious cases justifying a more severe sanction the case must be referred to the Solicitors Disciplinary Tribunal (“SDT”). The SDT is an independent body, and cases are heard by two solicitors and a lay person. There is a right of appeal to the High Court.
In a recent article lain Miller argued that the powers of the SRA should be increased allowing the SRA
“take the initial enforcement steps subject to review by the SDT”, as is already the case with law firms operating as Alternative Business Structures (“ABI”).
Mr Miller stated that the current system of disciplining solicitors is, “inefficient and costly and must not be allowed to survive much longer.”
I disagree for the following reasons:
1. SRA investigations can and should be open to scrutiny.
Under the current system once the SRA receives a complaint it must investigate, seek a response from the solicitor, and decide whether there is a case to answer. If so, whether to impose any internal sanction or to refer more serious cases to the SDT. Even in the best run organisations errors can and do occur. Regardless of the care taken in their processes and procedures the SRA may, on occasion, get it wrong. If the SRA was permitted to act as both police, judge and jury, there would be a loss of the independent scrutiny applied by the SDT. The suggestion that the SDT should turn into an appellate body for those unhappy with SRA decisions, as suggested by Mr Miller, is unrealistic and overlooks the practical realities that flawed decisions of the SRA may have. It may take months for an appeal to be heard by the SDT with the resulting damage caused to the solicitor and his practice. The solicitor is likely to lose his reputation, his practise may be closed with job losses realised, being a situation very difficult to recover from if allegations and decisions made by the SRA are subsequently overturned by the SDT.
The current system provides safeguards and procedures for any failings in the SRA’s investigation and which will be subject to the detailed scrutiny of the SDT and avoid the potential devastating financial, personal and professional consequences to a solicitor the subject of allegations which may not have been properly investigated or simply not supported by evidence.
2. The SDT applies the criminal standard of proof.
The SRA has made it clear that they wish to change the current standard of proof required before the SDT from the criminal to civil standard. For my part, l remain of the view that the
criminal standard should continue to be applied. Beyond reasonable doubt means that the SDT must be sure that allegations made by the SRA have been made out to that standard. I have spent decades prosecuting and defending professionals, predominantly solicitors, and my experience tells me that the criminal standard of proof is justified. A solicitor facing the potentially devastating consequences of an adverse decision to include financial, personal and professional consequences, should expect allegations to be made out to the criminal standard of proof, avoiding any room for uncertainty in the minds of those delivering a sentence that could be life changing for that solicitor.
3. The SDT is independent.
The SDT is truly independent and separate from the SRA. Doing away with a system which has stood the test of time, set up to provide as fair a trial as possible to solicitors accused of wrong doing, seems to me nothing more than a race to the bottom. The SRA is pushing for an increase in its internal disciplinary powers. The interests of justice require that the current regime, which has stood the test of time for many years, be maintained rather than seeking to argue for a change in the current system for the purposes of cost cutting and speed as suggested by Mr Miller.
In a world where business reputations can now be destroyed with a vengeful review on Google or social media, solicitors need protection more than ever. Yes, perhaps providing the SRA with extended powers to act as police, judge and jury could speed up hearings and reduce costs, but could such a system provide the same protection and safeguards to those facing serious allegations that could potentially be the end of their career? I believe not. More importantly, how is the solicitors’ profession supposed to convince the public that we stand behind the rule of law, independence of the judiciary and access to justice if we are willing to betray those ideals when it comes to regulating our own profession? We have been helping legal professionals with professional disciplinary and regulatory hearings for over twenty years. If you have any questions relating to an SRA investigation or need representation before the SDT please call us on 0151 909 2380 or complete a Free Online Enquiry