SDT: No chilling effect
The Solicitors Disciplinary Tribunal (SDT) has dismissed as “astonishing” arguments put by a US law firm to see all the evidence in the prosecution of a former trainee solicitor before its witnesses give evidence.
Holland & Knight said it was worried about the risk to its reputation from allegations that William Amo may make during the hearing and wanted to ensure its witnesses were prepared for them.
It argued too that refusing its application for disclosure would likely to have a “chilling effect by discouraging other firms and/or their compliance officers from reporting their concerns about employees’ honesty and integrity to the SRA”.
Natural justice, it submitted, required the witnesses to be able to prepare for the hearing. To do so, they needed to understand the nature of Mr Amo’s defence.
Mr Amo is accused of telling partners during an appraisal meeting that he had not failed any legal practice course examinations or modules, when in fact he had.
Both the Solicitors Regulation Authority (SRA) and Mr Amo’s counsel opposed the application.
In a decision last week, the SDT rejected it, saying the only preparation the witnesses needed was to be familiar with the contents of their own statements.
They were not parties to the proceedings – Holland & Knight’s suggestion that it and the witnesses were akin to parties was “without foundation” – and so did not need to understand Mr Amo’s defence.
The SDT branded “astonishing” the firm’s statement that it did not understand why Mr Amo was being treated differently by being provided with all of the firm’s witness statements.
“Either the firm was suggesting that the respondent as a party to the proceedings and the person who had to answer the allegations should not have sight of the evidence upon which the applicant [the SRA] would rely at the hearing, or it was being suggested that the firm ought to be in the same position as regards the evidence notwithstanding that it was not a party to the proceedings.
“The tribunal found both submissions to be extraordinary in all the circumstances.”
There would be no chilling effect, the SDT continued: “Firms and compliance officers were under a duty to report misconduct. That duty could not be ignored due to the possibility of criticism of that report by a respondent.
“The tribunal did not accept that the possibility of criticism would lead to firms and compliance officers breaching their regulatory duties. Such a submission, the tribunal found, was wholly without merit.”
The risk of there being or appearing to be collusion between the witnesses “far outweighed the risk that the witnesses might be subject to unnecessary cross-examination”, and the witnesses would be afforded the same protection as all those who appeared before the tribunal.
For largely the same reasons, the SDT rejected Holland & Knight’s application that its witnesses should have separate legal representation at the hearing.
It said the firm seemed to misunderstand the witnesses’ role and them being represented would not assist the tribunal.
They should beware their own application lest Amo’s defence tries to apply the principle in R v Skingley & Burrett (CA) – that where a complainant is in effect a prosecutor then they have to be open & transparent in the disclosure process (admittedly criminal but H&K’s demands reminded me of it)