Fair play

It is no longer headline news that the way solicitors are regulated is changing from October. Nor is it particularly remarkable that the Solicitors Regulation Authority has admitted that it needs to take steps to build a new relationship with those it regulates. Trust is a key foundation stone of the new relationship.

The SRA has been working hard to improve its image within the profession using various techniques, including its recent series of roadshows to engage with the profession. On the other hand, criticism of the SRA by both the Solicitors Disciplinary Tribunal and the Administrative Court in a number of recent cases suggests that perhaps the message is not getting through.

Solicitors appearing before the SDT have reached the end of a long and often extremely traumatic experience. They may be facing the loss of a career and a reputation years in the making; the very least they should be able to expect is that they will not have been put through that process unnecessarily and will receive a fair hearing. In particular, solicitors accused of dishonesty need to be sure of the allegations they are facing and understand the basis on which it is said that they acted dishonestly.

A recent case relating to doctors has highlighted again the importance of fairness and natural justice in disciplinary proceedings, particularly where the accused is faced with serious allegations. Bonhoeffer v GMC (see solicitorsjournal.com, 23 June 2011) involved allegations of extremely serious misconduct based entirely on witness evidence where the GMC did not want the only witness willing to testify to do so on safety grounds. Professor Bonhoeffer would therefore be denied the right to test the evidence against him and would be unfairly prejudiced if the evidence were to be admitted at trial.

The approach taken by the Administrative Court in this case is at odds with that historically taken by the SDT. The SDT has traditionally maintained that the more serious the allegations, the greater the need for them to be brought to light and heard to protect the public. For that reason, the SDT has been reluctant to grant applications by defence solicitors to stay proceedings on grounds of unfairness, particularly where allegations are very serious. That approach may be modified in light of the Administrative Court's views.

Abusing trust

The procedure before the SDT is necessarily geared towards protecting the public interest which means that, in some instances, it can have a harsh impact on respondents, particularly in relation to costs. The SRA, as a public interest regulator, must be afforded a certain amount of protection otherwise it may be prevented from acting in the public interest. So, for example, it is almost impossible to obtain an award for costs against the SRA and I am only aware of two recent cases where such an award was made by the SDT. In both cases, the SDT found that the SRA should have reviewed their case at an earlier stage and withdrawn all or part of it.

The SRA has also been criticised in a number of cases in which costs awards were not made. Re Brown, heard in May 2011, saw the SDT direct that the SRA must not take further action against a solicitor because its internal procedures had not been properly explained to the solicitor and he had, in consequence, been treated unfairly. Other cases have seen the SRA criticised for advancing propositions which were unarguable and for disproportionality.

Of greater note than all of the criticisms made by the SDT, however, is the decision of the Administrative Court in Thaker v SRA. The SRA was roundly criticised in that case for the poor preparation of its case and for apparently disregarding assurances given to the Administrative Court as to the conduct of the case. The Administrative Court felt that the respondent had been faced with such unfairness that the findings against him could not stand.

It is reassuring to know that there are some safeguards against manifest unfairness in the disciplinary process. And it is appropriate to point out that cases in which such gross unfairness is found have been relatively rare. Given the propensity of solicitors to try to represent themselves in SDT proceedings, it may be that unfairness is more prevalent than it appears, but that is a question for another day.

On any analysis, the SRA is in a position of trust. Instances where the SRA is found to have abused that trust should be examined for the lessons which can be learned. It would be interesting to know what lessons the SRA has learned from recent criticisms and how those lessons are disseminated. The SRA is trying to build a better relationship with the profession and prove that it is a strong regulator, fit for purpose in the changing world of regulation. A commitment to treating those accused of misconduct fairly and being more transparent about its own processes may help in that aim.