Working within the Limits of Competency and under Supervision

Part of acting ethically is being able to recognise when mistakes are made and how to correct them and not being afraid to ask for help. Learning from mistakes and accepting the feedback of others is an important skill in the development of compe­tency and the professional self.

As indicated earlier, if you are unclear about how best to proceed, you should always seek further guidance from your professional body. There are resources and guide­lines available on the websites for the Law Society and the SRA as well as practice helplines.

Disciplinary Proceedings

1.5.1 Misconduct

When things go wrong, it is likely to have serious consequences for an advocate who has not behaved professionally or ethically. An incompetent or unethical advocate is likely to bring the legal profession into disrepute by causing harm or loss to members of the public. Such advocates are also likely to face disciplinary proceedings brought by the regulator of their profession. Inappropriate or unethical behaviour could lead to disciplinary proceedings and a finding of professional misconduct being made by a tribunal. Professional misconduct has been defined in Walker v Bar Standards Board [2013] (unreported 19 September 2013) as misconduct, which can be “properly regarded as serious” and must be “more than trivial”. Allegations of professional mis­conduct will lead to an advocate being investigated and possibly disciplined by the Solicitors’ Disciplinary Tribunal ('SDT^,).

Disciplinary bodies and panels such as the SRA and SDT will also be mindful of the overarching objectives set out in s. 1 of the Legal Services Act 2007 relating to (1) the protection and promotion of the public interest, (2) supporting the rule of law, (3) improving access to justice, (4) protecting and promoting the interests of consumers, (5) promoting competition in legal services, and (6) encouraging its independence, strength and diversity, (7) increasing public understanding of their rights and (8) pro­moting and maintaining adherence to professional principles.

Even if the lack of competence is not serious enough to merit disciplinary proceedings it could still lead to the making of a wasted costs order against the advocate under the Senior Courts Act 1981, s. 51(6) as inserted by the Courts and Legal Services Act 1990, s. 4. This section provides that the court may “order the legal or other repre­sentative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court”.

1.5.2 Solicitors' Disciplinary Tribunal

The Solicitors Disciplinary Tribunal (‘SDT’) is the body that hears and determines alle­gations of professional misconduct or breaches of the SRA Standards and Regulations. Its powers derive from the Solicitors Act 1974 (as amended by the Courts and Legal Services Act 1990). The Solicitors Regulation Authority (‘SRA’) will investigate com­plaints and refer serious matters to the SDT.

The SDT functions as an independent tribunal with the power to discipline solicitors (see Solicitors Act 1974, s. 47). The SDT decides cases based on the evidence that the SRA and others have collected and presented to it. The Tribunal also has jurisdic­tion to determine allegations of misconduct against employees of solicitors such as ‘solicitors’ clerks’ as well as trainee solicitors, solicitors, former solicitors, registered European lawyers, registered foreign lawyers and recognised bodies. As one of the roles of the SRA is to prosecute cases for non-compliance with its standards, the SRA will be represented at SDT hearings as well.

Like courts, the SDT rules confirm an “overriding objective” to “deal with cases justly and at proportionate cost” (see 2019 Rules, rule 4). The standard of proof applied in

the proceedings is the civil standard of proof (see rule 5). Cases are heard by a panel of two solicitors and one lay member. All SDT panel members are appointed by the Master of the Rolls. Unless the Tribunal decides otherwise, all cases are heard in pub­lic (rule 35). Costs orders can be made and will carry 8% interest in accordance with the Judgments Act 1838, s. 17.

The SDT also acts as an appellate body for licensed bodies regulated by the SRA where the SRA has issued sanctions such as a rebuke or a fine. In respect of solicitors, the appellate body is the High Court.

The decisions of the SDT are published on its website: www.solicitorstribunal.org.uk.

1.5.3 The Role of the SRA

The SRA will decide whether or not to refer matters to the SDT for sanctions. You will find some information on the matters it takes into account in its Guidance on Issuing Disciplinary Tribunal Proceedings (this can be found on the SRA website: www.sra.org.uk). If the SRA Principles, Code of Conduct or Solicitors Account Rules have been breached then a referral to the SDT will take place. The main test is:

1. Whether there is a realistic prospect of the Tribunal making an order if the allega­tion is referred to it, and

2. It is in the public interest to make the referral.

There must be sufficient evidence available and the alleged conduct must be regarded as sufficiently serious to warrant a referral to the SDT.

The SRA has its own investigatory powers and can impose its own sanctions. The disciplinary process is detailed in the SRA Regulatory and Disciplinary Rules.

The SRA approach to its investigatory powers is set out in the SRA Enforcement Strategy.

1.5.4 SRA Enforcement Strategy

The SRA has a written document which sets out its approach to enforcement. It will investigate “serious breaches” that the Enforcement Strategy defines as includ­ing “serious misconduct”, serious breaches of the Codes of Conduct, Principles or Solicitors Accounts Rules as well as convictions and cautions. To assess seriousness

the SRA will consider aggravating factors (matters that tend to make the conduct more serious) such as taking advantage of a vulnerable client or evidence of a pattern of misconduct that has been repeated and mitigating factors (matters that lessen the seriousness of the conduct, for example, taking steps to remedy the loss or harm or showing remorse). The SRA will also consider past conduct and how this impacts the present allegations as well as the degree of harm that has resulted and the level of experience of the person involved. Certain conduct will be considered more seri­ous than others, such as conduct that involves dishonesty, abuse of trust or violent and sexual misconduct.

1.5.5 Sanctions

The SRA can impose sanctions such as:

1. Suspension of practising certificate.

2. Impose conditions on practising certificate.

3. Impose a warning.

4. Impose a fine.

5. Impose a rebuke.

6. Refuse admission to the Roll.

7.

The SDT can impose the following sanctions:

1. Reprimand.

2. Unlimited financial penalty (payable to HM Treasury).

3. Restriction order for a definite or indefinite period of time (restrictions imposed on the way/ability to practise).

4. Suspension from practice for an indefinite or definite period (application can be made to resume practice).

5. Striking off the Roll (still possible to apply to be restored to the Roll).

6. No order.

7. Costs order.

In Fuglers and Others v Solicitors Regulation Authority [2014] EWHC 179 Popplewell J confirmed that when deciding on the correct sanction to use the disciplinary panel should first assess the seriousness of the misconduct that is alleged, it should then as the second step consider the purpose for which the sanction is to be imposed (see overarching principles in Legal Services Act 2007, s. 1) and then the third and last stage is to choose the appropriate sanction that fulfils the purpose identified.

We will continue to work with the SRA Standards and Regulations in Part B.