Should Solicitors facing SDT proceedings be entitled to legal aid? This is a issue The Law Gazette recently reported that the Law Society is to consider ways in which Solicitors can be legally funded if they are facing the Solicitors Disciplinary Tribunal (the SDT).
Immediately comments started filling up on the page, including views that the SRA (Solicitors Regulatory Authority) has been over-stretching its powers and causing issues for those it regulates – some people even took the view matters referred from the SRA to the SDT were sometimes frivolous.
The SRA has spent the 17 years of its existence in creating an incredibly and increasingly hostile disciplinary process for solicitors.
Personally, as someone who has dealt with the SRA a number of times, I can’t see that these views of them (or the SDT) are that valid. The SRA seems to have a process to ‘acid test’ initial complaints before they are considered further, then there is an investigation process, and then only if SRA are are unhappy with what they’ve found does it go to the SDT.
My personal experience is that the SRA can be pretty lethargic when it comes to investigating issues of misconduct, so much so they were recently threatened with a Judicial Review unless they investigated a matter relating to a SLAPP. Most recently I was asked to provide the SRA with material that belonged to the solicitor despite having no statutory power to do so; and the material clearly attracting legal professional privilege.
On face of it the SRA won’t even open an investigation without a surfeit of information and evidence, and it’s not a done deal that an investigation will lead to an SDT hearing.
If the SRA do have enough to refer to the SDT, the chances are that the misconduct in question has crossed a threshold of seriousness where there is an arguable case, backed up with the evidence to prove it. It seems to be very rare that the SDT do completely exonerate those who come before them, and those that do are given a fair and due process, like any other Court or Tribunal.
So…….should solicitors referred to the SDT be given legal aid?
As a preface: there is no doubt in my mind that if the SRA has prosecuted a matter to the SDT and the solicitor is exonerated; then the solicitor should have every penny of the costs they’ve spent defending the matter returned to them.
First then, lets consider that a solicitor is themselves legally qualified and trained. Part of that training process will be to have an all round understanding of the legal process, including Courts and Tribunals – even if the end result is to write wills or deal with probate. The point is that this isn’t lamb to the slaughter; the processes of the SRA and SDT of other solicitors is ‘judgement by peers’, and rightly so.
Secondly, this isn’t really difficult stuff. The SRA set out principles and a framework to which their regulated persons must follow. The principles are pretty straightforward, and where solicitors do breach the framework, its more often that not fact based. Sometimes there may be issues of law to consider – but mostly its two things to be decided; (1) Did Person X do Y?; and/or (2) In Person X doing Y, did this cause a breach of the framework. It’s binary level stuff………..does it really need a fully trained and qualified solicitor to instruct another fully trained and qualified solicitor or barrister to argue it on that basics?
Thirdly, what about professional indemnity insurance? If you are being hauled before the SDT and you vehemently deny the accusations, is the point not to claim on your insurance for the costs of any legal representation you may require?
Finally, in many of the SDT Judgements I’ve seen, where the solicitor has been found to have misconducted themselves, they tend to then argue there should be no order as to costs. Usually this because they’ve been struck off and claim they no longer have any income to pay the costs. This is usually having denied all the allegations, and the SRA having to go to the cost of proving them to the SDT. So if there is no order as to costs – where does the money come from?
It seems to me (and I don’t know the figures) that an overwhelming minority of solicitors (to say the very least), are never reported to or have reason to be even looked into by SRA. But it does seem that an overwhelming majority of solicitors referred from the SRA to SDT are usually found to have misconducted themselves. Those findings are not made because they didn’t have legal representation…….it’s because they have behaved badly.
Conclusion
Should Solicitors facing SDT proceedings be entitled to legal aid? I think the answer is that it depends!
The answer has to be “NO”, on the assumption SRA undertakes to pay 100% of the solicitor’s costs if they are cleared of any wrongdoing. The answer also has to be “NO” if said solicitor can use their professional indemnity insurance to pay their legal costs.
If, however, there is a risk to the solicitor they may not get 100% of the costs back if fully cleared, then the answer is probably “YES”, with the costs they do get repaid back into the legal funding system.
