Confidentiality in SDT proceedings

There are few more vexed questions in proceedings before the Solicitors Disciplinary Tribunal than the balance to be struck between open justice and the need to protect the interests of those affected by publicity including the clients themselves. 

This issue has arisen again in SRA v Williams where the High Court considered an appeal where the SDT had not granted an anonymity order in relation to former clients mentioned in the proceedings.

The SDT struck off Mr Williams in November 2022 after finding that he had transferred sums belonging to clients without their consent, falsified an email to justify one of these transfers, misappropriated funds from a client and created, or caused to be created, false documents. 

The SRA sought an anonymity order on the basis of Legal Professional Privilege (LPP) in respect of several former clients of Mr Williams whose property affairs were involved in the disciplinary proceedings against him.  The SDT refused to make the anonymity order.  The SDT based its decision on the judgment in the case of Lu v SRA [2022] EWHC 1729 (Admin). 

In that case, Mr Justice Kerr said:

"In my judgment, the sweeping anonymity orders in respect of the third parties ought not to have been made. Courts and tribunals should not be squeamish about naming innocent people caught up in alleged wrongdoing of others. It is part of the price of open justice and there is no presumption that their privacy is more important than open justice."

The SRA appealed the SDT’s decision and the SDT agreed not to publish its judgment pending the outcome of that appeal.  In explaining its reasons for refusing to make the anonymity order, the SDT referred to the Lu judgment, and set out the factors it had taken into account when deciding whether the names should be anonymised.  The Tribunal stated that, while it was very conscious of the need for client confidentiality in the normal course of events, it:

“…could not detect any harm which might result to any of the individual or company clients referred to in the Rule 12 Statement and it therefore determined that this was not a case…of exceptional hardship or exceptional prejudice such that anonymisation should be applied. The Tribunal therefore saw no reason to depart from the principle set out by Mr Justice Kerr [in the Lu case] that 'Courts and Tribunals should not be squeamish about naming innocent people caught up in alleged wrongdoing of others …'.”           

The High Court allowed the SRA’s appeal and clarified the scope of Lu. Simply put, the case of Lu was not a decision about LPP – in fact LPP was not mentioned once in that Judgment.  Mr Justice Knowles set out his views in clear terms:

“In my judgment, therefore, if it be the case (as I was told it was) that the SDT has been relying upon Lu in relation to claims for LPP, then generally it should no longer do so. That case will almost certainly be irrelevant to any question of LPP likely to arise before the SDT.”

In addition to clarifying that Lu was of no relevance where anonymity was sought on the basis of LPP, Mr Justice Knowles affirmed that LPP is a fundamental right which cannot be overridden by a competing public interest.  The substance of the former clients’ communications with Mr Williams’ firm and their names were protected by LPP.  It is in the public interest not to erode the general principle that a client may expect their communications with their lawyers to be kept confidential without lawful or proper reason.  It was unnecessary for the SDT to weigh up the impact on the former clients and whether they had been asked to comment.  Mr Justice Knowles put this very succinctly:

“LPP either applies to a communication, or it does not. Where it applies, then it is absolute unless it is waived by the client.”

“The communications at issue in the present case are and were obviously protected by LPP which had not been waived, and that should have been the end of the matter. No further analysis was necessary, and the SDT should have reflected the communications' privileged status by anonymising its reasons, as it was asked to do by the SRA. Its decision refusing to do so was obviously wrong as a matter of law.”

The decision in Williams highlights that particular care needs to be taken when dealing with client material.   Material that would otherwise be protected by LPP is only before the SDT for the very narrow purpose of enabling it to carry out its disciplinary functions.  If SDT proceedings were allowed to become a route where material that was subject to LPP could enter the public domain then the ability of the SRA to obtain the material in the first place would be put at risk and the regulatory framework would be undermined.

FURTHER INFORMATION

If you have any questions regarding this blog, please contact Iain Miller and Lucy Williams in our Regulatory team.

ABOUT THE AUTHORs

Iain specialises in legal ethics, investigations, and public law matters. He is General Editor of leading textbook on legal services regulation, Cordery on Legal Services.

Iain’s experience in relation to legal services regulation dates back to 1994. Since then he has acted in many of the leading cases relating to the regulation of lawyers in England and Wales. His experience covers not only disciplinary proceedings but also, business structures, investigations, public law challenges, liability and restructuring. Iain acts for a number of large law firms in advising them on SRA related issues as well as providing advice to law firm partners. Iain also provides policy, governance and litigation advice to regulators in England & Wales and in other jurisdictions.

Iain is ranked as Band 1 in Chambers & Partners Guide to the UK Legal Profession in the Professional Discipline category and ranked as Band 2 in the Administrative & Public Law category. He is also ranked in the Legal 500 Hall of Fame for professional discipline. In 2013 Iain was included in the Lawyer Magazine's Hot 100. 

Lucy is a Legal Director in the Regulatory Department with a particular specialism in legal and financial regulation. In her defence practice Lucy represents regulated professionals and organisations facing professional disciplinary proceedings, including law firms, solicitors, barristers, accountants, accounting technicians and surveyors. 

Lucy acts for several regulators in professional disciplinary matters as well as providing advice on policy issues and drafting rules, regulations and policy documents.  Lucy has prosecuted and defended a wide range of regulatory cases, from simple conviction and misconduct matters to cases of dishonesty and sexual misconduct to complex clinical cases and allegations involving financial maladministration. Lucy is part of the team of specialists at Kingsley Napley advising organisations and individuals in relation to allegations of, and investigations into, sexual misconduct in the workplace. 

Lucy’s advisory work for regulators includes drafting rules and standards, assisting with the preparation of and response to consultations and advising on policy issues. Lucy is the author of several sections of Cordery on Legal Services, the leading textbook on legal services regulation.