"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
Decision date: 30 May 2012
Harsh practical effects of conditions of practice in current climate does not make their imposition inappropriate if they are felt necessary by the Solicitors Regulation Authority (SRA); although it is another reason for ensuring they are necessary and proportionate.
Mr Bryant (B) appealed against a decision of the Appeal Committee of the SRA dismissing his appeal against conditions imposed on his practising certificate on 30 March 2011.
B was originally struck from the Roll of Solicitors in October 2006, following a determination by the Solicitors Disciplinary Tribunal (SDT) that he had been dishonest in his dealings in respect of a particular American client. That finding was quashed by the Divisional Court in October 2007; the Court concluded that B had been guilty of conduct unbefitting a solicitor, but to a much lesser extent than that found by the Tribunal. It was found that B’s professional misconduct lay in incompetence/negligence rather than dishonesty. A two year suspension from 17 October 2006 was substituted for the original striking off order.
Once the two year period ended in October 2008, B was granted a series of practising certificates subject to certain conditions. The conditions in each year thereafter were not identical; they included that he was only to be employed in a role that had been first approved by the SRA, he was not permitted to be a sole practitioner, inform his employer or any prospective employer of the conditions and their reasons for their imposition and he was not to be a designated Money laundering Officer of any legal practice.
The test to be applied on the appeal to the Court was agreed, as referred to in the case of Lebow  EWCA Civ 411; to have in mind the imposition of conditions on a practising certificate is a regulatory decision based on the need to protect the public and the reputation of the profession, however, if they are to be imposed, they must be both necessary and proportionate.
It was argued on behalf of B that since that case, recent developments in the marketplace have had the consequence that solicitors such as B, who have had conditions attached to their practising certificates, are finding it virtually impossible to find employment. This is due in large part to demands for increased premiums for indemnity insurance in such circumstances.
Mr Justice Eady sympathised with that argument; ‘according to the evidence before me, the position has fundamentally changed; the imposition of conditions is now in practical terms recognised to be a “kiss of death”. To all intents and purposes they render the prospect of further practice impossible. In a sense therefore, it may be said that what were originally intended to be temporary and precautionary measures have, in reality, become permanent and punitive’.
However, it was noted that B would still have great difficulty in obtaining employment if the conditions were lifted, given that he would still have to disclose that he had been a subject to them to the insurers. More importantly, it is necessary to remember that B had not been in practice since 2005; it was not surprising that the SRA wished to impose conditions. When addressing the question of the need to protect the public and maintain confidence in the profession, it was held that ‘the reasonable onlooker would register surprise and disquiet if no supervision were required or opportunities afforded for rehabilitation’.
One suggestion on behalf of B was that he would offer undertakings to the SRA, without anything appearing on the practising certificate. It was held that this would have little practical difference as they would still need to be declared.
It was therefore held that, ‘if the SRA considers that the imposition of a condition or conditions is appropriate in the case of any solicitor’s practising certificate, and those conditions are proportionate, it would be inappropriate not to impose them (or alternatively to lift them) simply because there is now a harsher climate in the insurance marketplace’.
However, it was further held that, ‘the market conditions may, however, provide one more reason for ensuring that any conditions are indeed necessary and proportionate to achieving those objectives’.
The practical consequences of the imposition of conditions on a solicitor’s practising certificate are a relevant consideration when determining whether they are a necessary and proportionate step to take. However, if it is felt that they are appropriate it would not be right not to impose them simply because of the current climate making their effect more practically punitive.
By Sarah Harris
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