Professional conduct and proportionality: a fine balance

The words ‘proportionate’ and ‘proportionality’ are key ingredients in sanctions guidance.

The Solicitors Disciplinary Tribunal (SDT) states: "[The Tribunal’s] focus is to establish the seriousness of the misconduct and, from that, to determine a fair and proportionate sanction."

The Bar Tribunal and Adjudication Services (BTAS) says: "The guidance provides decision makers with a basis for considering what sanctions are appropriate in any given case and is intended to promote proportionality, consistency and transparency in sanctions."

CILEx Regulation states: "This document is intended to promote proportionality, consistency and transparency in decision-making."

The Solicitors Regulation Authority’s enforcement strategy says: "… the public and the profession have a right to expect that wrongdoing will be met by robust and proportionate sanctions, and that we as a regulator will enforce our standards or requirements evenly, consistently and fairly." (Aside to camera: ‘robust’ and ‘proportionate’ may not be natural life partners, but that’s a different opinion piece.)

The dictionary definition of proportionate gives us: "The quality of corresponding in size or amount to something else". Put another way – ‘let the punishment fit the crime'.

But the purpose of sanction in professional conduct cases is not primarily punitive, as we know from Lord Bingham in Bolton v The Law Society [1994] WLR 512 (always well worth a re-read).

Tribunals are concerned with public protection and maintaining the reputation of a profession under threat from its rotten apples; punishment is, almost, incidental.

In his indispensable Professional Conduct Casebook, Kenneth Hamer devotes a section to the application of proportionality to sanctions.

His commentary, drawn from the cases, states the principle as “weighing the interests of the public against those of the registrant” – aka the aforementioned ‘rotten apple’.

This is quite a task, not least because the interests of the public are, themselves, the very devil to weigh. Lockdown brought that message home, for which see anti-lockdown and anti-vax protests. The interests of the public are far from homogenous. That makes life interesting and, often, a challenge.

Weighing the ingredients, ensuring the flour, butter and chocolate chips are proportionate, will achieve Bake Off-worthy consistency. The twelve signature bakes will, theoretically, look and taste the same.

But as Bake Off viewers know, this isn’t how real life works. Performance on the day, the heat in the tent, the quality of the butter, Prue Leith’s taste for chocolate chips – each make a difference, regardless of the accuracy of the scales.

Must a solicitor always be struck off for dishonesty, in the public interest? And a doctor rarely erased for the same misconduct because public interest dictates the need to maximise the capital investment in their training? Is either approach truly proportionate or is real life more nuanced, like the ingredients in a successful showstopper?  

BTAS is consulting on its sanctions guidance following decisions on sexual misconduct cases, which created adverse comment due to apparent leniency, particularly in comparison to sanctions imposed by the SDT for similar misconduct.

Hamer discusses a 1956 case, involving the indecent assault by a male solicitor of a young soldier sleeping in the railway carriage in which they were both travelling. The SDT’s predecessor struck the solicitor off.

On appeal, Lord Goddard CJ found there was no professional misconduct. Consideration was given to whether strike off was proportionate to the proved misconduct. The court substituted the sanction of two years’ suspension.

Today, the original strike off looks to be on the money because of the change in society’s values and ethics. Weighing concepts such as public interest in the balance is inevitably subjective. Panellists bring their own baggage to the table.

This is one reason why diversity on panels is so important. That fine balance of judgement produces outcomes which influence subsequent cases. It becomes accepted as the norm without necessarily being representative.

Chef, Alain Ducasse, said, “The proportion of ingredients is important, but the final result is also a matter of how you put them together. Equilibrium is key.”

This resonates when considering sanction in professional conduct cases. The objective must be to combine all the factors for and against a professional to create a well-balanced result that reflects the reality of current professional life.

Susan Humble is a senior partner at RIAA Barker Gillette riaabarkergillette.com She is former CEO of the Solicitors Disciplinary Tribunal.