Solicitors tribunal publishes first fining bands guidance

The Solicitors Disciplinary Tribunal has for the first time published fining bands guidance, along with more detailed mitigating factors, in an attempt to help defendants establish how their case is likely to be dealt with.

The tribunal regularly reviews its approach to sanctions but the new guidelines, which come into effect for all cases being heard after 1 January 2017, were also the first to have been comprehensively considered by a specific working party.

The SDT clerk and chief executive, Susan Humble, told Solicitors Journal that very few tribunals published details of fining bands, which can be difficult to set where, as in the SDT’s case, a tribunal is under a duty to consider a defendant’s means when setting the fine.

Nevertheless, Humble said: ‘We thought it would be helpful to be transparent so respondents can reach a more informed decision as to what the tribunal are likely to fine them.’

Fine levels before the SDT are unlimited and the new guidance provides five indicative categories ranging from up to £2,000 for ‘conduct assessed as sufficiently serious to justify a fine’ to more than £50,000 for ‘conduct assessed as significantly serious but not so serious as to result in an order for suspension or strike off’.

These new bands complement the current general approach detailed in the guidance, based on the seriousness of the misconduct and ‘the means available to an individual or a firm’. Where a solicitor can provide evidence of ‘limited means’, the fine may be reduced to reflect this.

In practice, the tribunal usually sets out the amount a solicitor would have been fined, reduced to a lower amount that takes into account evidence of means. One typical example was a solicitor being on benefits, Humble said, but whatever the mitigating factors, these have to be persuasive.

‘Personal mitigation tends not to be particularly persuasive,’ Humble continued, ‘but if somebody is, for example, inexperienced and hasn’t been properly supervised, that could lead to a fine being reduced. If the allegation that has been admitted or found proved is relatively minor, then you may find fines at a level of around £2,000.’

Last year, 42 of the 176 cases heard by the SDT resulted in fines totalling £313,250, representing an average of £7,457 per fine. The lowest was for just £1,000 and the largest £40,000.

Humble also stressed that the new guidelines were just that, and that the tribunal would continue to look at each case in the round. ‘The personal circumstances of the individuals who turn up here are so different,’ she said. ‘Some will be struggling along on their own as sole practitioners in quite a difficult market; others will have a lot of support within a large firm – but being in a large firm with a lot of support brings its own problems, with people who may be under time targets and fee level targets.’

The SDT has expressed concern before about the fate of solicitors in smaller practices. Most recently, its response to the SRA’s ‘Looking to the future’ consultation warned that SME law firms were in danger of being sacrificed in the name of unverified consumer-led ideology. Further, Humble suggested, technology has also changed the nature of legal work, with older solicitors perhaps more exposed in regulatory terms.

‘With emails flying backwards and forwards it’s quite a different profession from how it was, say, 20 years ago,’ she remarked. ‘There are fee earners of different age and experience within a larger or mid-sized firm, and people who are relatively new but with more experience of dealing with 100 plus emails a day compared with people who’ve been used to dictating letters to their secretaries and it take a few days to get out. The kind of factor that we take for granted can make a big difference for some in private practice who may be struggling with multiple demands on their time.’

In a separate section, the new guidance also attempts to deal in more practical detail with restoration to the roll or termination of suspension. One issue, according to Humble, is the requirement to have been employed, preferably in a law firm or in a legal environment.

Many, she commented, would contact the tribunal saying it was unrealistic to expect them to fulfil the requirement, whereas the SRA can, in certain circumstances and subject to conditions, authorise them to work in approved employment. ‘That information wasn’t really out there,’ Humble said, before adding that the separate guidance on other powers now refers specifically to the regulator’s powers in relation to rehabilitation.

The guidance also brings together the tribunal’s current practice in respect of other sanctions such as reprimand, suspension, and strike off.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg