The Solicitors Disciplinary Tribunal (SDT) has called for any new internal fining powers for the Solicitors Regulation Authority (SRA) to be limited to £7,000, rather than the proposed £25,000.
It expressed concerns about possible miscarriages of justice and affluent firms or individuals being able avoid public scrutiny by agreeing a fine.
A key aim of the proposal to increase the current £2,000 threshold is to reduce the number of cases which are referred to the SDT, but the tribunal observed that it dismissed the allegations in a significant minority of cases it heard.
In eight out of 68 substantive hearings in 2020, the tribunal found the regulator’s allegations not proved for all respondents, and in a further case only for some. In two further cases, the SRA withdrew its allegations.
“The tribunal considers that these figures evidence the critical importance of having allegations of professional misconduct tested by an independent and impartial body,” it said in its consultation response.
Any rise in the regulator’s fining limit “increases the risk of a miscarriage of justice”.
The SRA’s plans were strongly criticised by the Law Society this week too. It suggested raising the limit only as far as £5,000 to £7,500.
The SDT said an individual or law firm “should not be judged by the same body which has set the rules, investigated the alleged offence and initiated the prosecution” and there was a need for a “separation of powers”.
The cost of regulatory proceedings alone should not be a “driving determinative factor”, it argued, because that meant “placing the rights of the accused individual behind the interests of the regulator”.
The SDT also warned that increased fining powers for the SRA “may erode transparency”, because most tribunal hearings were in public, followed by a detailed written judgment.
“Although the SRA publishes its decision notices in relation to most internal sanctions, its decisions are far shorter than a tribunal judgment and do not contain comparable explanation and detail.”
There was a “significant risk” that those with “limited resources”, such as sole practitioners, “may feel compelled to agree to a fine simply to avoid proceedings before the tribunal even if they dispute the allegations”.
There was also a risk that a “much more profitable law firm”, whether national or international, or “an affluent individual”, such as a partner in a large firm, “may seek to agree a fine directly imposed by the SRA simply to avoid the scrutiny of public proceedings before the tribunal”.
The SDT said it did not consider “any form of ‘plea bargaining’ in the solicitors’ profession” was appropriate and it was “wholly inappropriate for there to be any possible perception that wrongdoing in the profession is being ‘swept under the carpet’ by a swift, privately agreed financial levy” rather than being subject to “transparent public scrutiny”.
An increase to £7,000 would recognise the passage of time since the fining powers were introduced in 2009, along with the “increased value of the legal profession”.
Unlike the Law Society, the SDT said it was not opposed to removing fines from its sanctions guidance as an option for cases involving sexual misconduct, discrimination and non-sexual harassment.
The tribunal described these cases as “inherently serious and a cause for concern to the public who place their trust in members of the profession and to all those working within the profession itself”.
Meanwhile, Alison Kellett has been appointed as the new and first female president of the SDT, after Ed Nally completed his second and final term.
Ms Kellett has been a member of the SDT since 2015 and is head of global dispute resolution for the UK and Channel Islands at BNP Paribas.