There should be no question of the Solicitors Regulation Authority (SRA) “bargaining” with solicitors about sanctions, the Solicitors Disciplinary Tribunal (SDT) has made clear.
The comment came after the SDT rejected a “suggested outcome” in the case of Merseyside solicitor Peter Devine and said there were “key deficiencies” in an agreed statement of facts.
Mr Devine, who was born in 1956 and qualified in 2000, was a sole practitioner, based at Devine & Co in Ellesmere Port. The tribunal heard that the firm closed on 31 March 2013 and he was no longer practising as a solicitor, but still held a practising certificate.
He was found by the tribunal to have provided banking facilities through client account, by making payments, transfers and withdrawals that “did not relate to underlying legal transactions”.
Mr Devine was found to have “failed to return monies held in the firm’s client account promptly to a client” and “failed to keep a central record or file copies of all bills sent to a client”.
Along with these four breaches of the Solicitors Accounts Rules, he was found to have “acted for both the buyer and seller in conveyancing transactions where there was a conflict of interest” or significant risk of one.
Under the “suggested outcome” proposed by the SRA and Mr Devine, he would pay a fine of £4,000 and £6,500 in costs. Instead the SDT imposed a fine of £5,000, with costs of £11,000, and imposed a condition on his practicing certificate preventing him from working as a sole practitioner, partner or member of a law firm or ABS.
However, the SDT said it would be “inappropriate” to approve the agreed statement of facts and suggested outcome without a hearing.
“In this particular case the statement was, even on the face of it, insufficient to allow any tribunal to conclude that the sanction proposed was the correct one.
“Generally, the statement failed to explain on what basis the parties had arrived at the sanction suggested, with no discussion of the factors in the tribunal’s guidance note on sanctions.
“To give just one specific example, the statement failed to give any information as to whether the respondent had any previous appearances before the tribunal, which is clearly an extremely material factor.”
The SDT said it was helpful to have a statement of agreed facts if it assisted matters in dispute, but it “only worked” if the statement was provided expeditiously.
“In this case there was virtually no saving in time, or costs, especially as the proposed agreed facts and outcome were deficient in detail and analysis, and were provided so late in the proceedings.
“It also wished to point out that there should be no question of the applicant [the SRA] bargaining with a respondent about sanction, nor for the parties to purport to remove the tribunal’s jurisdiction to decide on sanction.”
The SDT described the way Mr Devine ran his firm as “somewhat shambolic”, with the accounts rules breaches inadvertent rather than deliberate, but said the allegation relating to conflict of interest was more serious.
“The tribunal was somewhat disturbed by the respondent’s lack of insight about the rule breaches and especially about his approach to potential conflict of interest where there had been a significant risk of harm even if no actual harm had been proved.”
On the question of means, the SDT said it was not appropriate to discount the fine or the costs imposed because, despite his counsel’s submissions about his financial situation, he owned or partly owned 18 properties worth over £1.5m.
An SRA spokesman said: “Disciplinary prosecutions can sometimes be resolved proportionately and in the public interest by the parties agreeing a regulatory outcome to be approved by the Solicitors Disciplinary Tribunal.
“An agreed outcome is where the respondent makes admissions and agrees with us an appropriate sanction to be proposed to the tribunal.
“We have been using agreed outcomes for a number of years to reduce the length and costs of hearings while still ensuring that appropriate admissions are made and the risks to the public dealt with. This process clearly recognises that the tribunal reserves the right to reach its own conclusions about matters.”