Solicitors' disciplinary processes: fit for purpose?

The annual reports of the Solicitors Disciplinary Tribunal (SDT) and the Solicitors Regulation Authority (SRA) do not normally make riveting reading. 

But both organisations have recently released reports which should be required reading for solicitors and indeed, for anyone interested in the professional conduct of solicitors. 

This is because they show how the disciplinary process, as it relates to the solicitors’ profession, is changing before our eyes. 

Firstly, there is the revelation in the SRA’s report that the number of misconduct cases that the regulator has brought to the SDT has risen by 40 per cent over the past five years. 

Last year, the SRA took a total of 134 misconduct cases to the SDT, as its report reveals. In 2013-14 that figure was 97. 

Meanwhile, the SDT reveals that prosecution costs have risen by 28 per cent over the past two years alone. Solicitors were ordered to pay a total of £3.45m in prosecution costs last year, up from £2.7m the year before, its report shows. 

There are likely to be a number of reasons for these trends, but I believe an important underlying one is the way in which an expanding number of misconduct cases involve sexual allegations – behaviour which may once have been considered ‘private’ rather than professional.

The SRA is spending much more time and money investigating these types of cases, which may explain the rise in costs orders. As Geraldine Newbold, the SDT’s chief executive officer and clerk writes: “Allegations of misconduct of a sexual nature by solicitors are likely to be an increasing theme for future cases brought by the SRA.” 

A striking example of this is the current case of Freshfields partner Ryan Beckwith who is alleged to have attempted to engage in sexual activity with an intoxicated junior member of staff at an event organised by the firm. He denies the allegations. 

The behaviour complained about in this case does not appear to have occurred in the office; nor does it appear to have taken place during working hours, but the case is before the SDT nonetheless. 

Inappropriate behaviour that was once tolerated within the profession is now rightly being tackled. But if the SDT and the SRA are to play their part, they need to approach these matters with the same fairness and rigour as any other tribunal grappling with criminal and quasi-criminal allegations. 

One area of concern is the way in which the SDT deals with highly contested issues of fact such as those typically found in sexual allegations. 

These are more typically resolved by a criminal court. This is not traditionally what the SDT has been used to; and it may take time to develop the relevant expertise. 

Geraldine Newbold states in the SDT’s report that tribunal members and staff have received training in dealing with vulnerable witnesses. 

However, it’s unclear the extent to which the SDT can properly determine these issues of fact, proven only now to the civil standard, and then translate them into a disciplinary context. 

It is crucial to the integrity of the legal profession (and, by extension, the health of society as a whole) that the SRA and the SDT are strong, robust institutions with the power to hold bad and misbehaving solicitors to account. 

There is no doubt that both institutions are able to adapt to do this to the best of their ability, but the intersection of professional and personal lives is complex legal territory. Professional lives may be ruined if they get it wrong. 

Andrew Katzen is a partner at Hickman & Rose hickmanandrose.co.uk