A nervous disposition
The current long-winded system of disciplining solicitors is inefficient and costly and must not be allowed to survive much longer.
As highlighted by the recent high-profile case of Phil Shiner, who was struck off for breaching practice rules around claims brought relating to the Iraq war, the current structure and relationship between prosecutor and tribunal flies in the face of more streamlined regimes.
Only the Solicitors Disciplinary Tribunal currently has the power to strike off or suspend solicitors or impose a fine of more than £2,000. Applications are normally brought by the Solicitors Regulation Authority, but that body has few enforcement powers of its own.
The Shiner case ran for more than two years with costs expected to hit £500,000. If Shiner is unable to pay then the costs will be borne by the wider profession.
Doubtless those involved in investigating, preparing, presenting and determining the Shiner case did so with skill and diligence. However, the system means that it simply could not have been done quicker or at less cost.
The problem is a structural one and that must change.
Under the current model, once the RSA receives a complaint it must investigate, seek a response from the subject, decide whether to refer the matter to the SDT, prepare its application, deal with any interlocutory applications and directions, and then wait for a listing slot. Hearings are akin to High Court trials.
While a process in which the initial decision is taken by a disciplinary tribunal is common within a professional regulatory scheme, it is less common in the financial and services sectors. There is no legal requirement to have such a disciplinary tribunal process.
An alternative model would be to allow the SRA to take the initial enforcement steps subject to review by a tribunal. Indeed, that is the model applied to legal practice alternative business structures, where the SRA is able to fine up to £250 million, subject to a review by the tribunal.
Gradually, an increasing number of the SRA's cases will involve entities and improving the functioning of the legal services market. An example is the work regarding transparency on law firm fees in the wake of a recent report from the Competition and Markets Authority.
The SRA has made it clear that in implementing that report's recommendations it will require firms to be transparent and will take enforcement steps for failure to comply.
However, under the current framework, if the SRA wants to impose a fine of more than £2,000 in those cases it will need to apply to the SDT. It is unclear as to how the SDT would respond to matters that will be far removed from its traditional work of dealing with the misconduct of individual solicitors.
This divergence between policy and enforcement is likely to become a real problem. Something is going to have to give.
This article first appears in The Brief on 13th February 2017
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