Tribunal “appalled and dismayed” by SRA’s approach to prosecuting solicitor

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6 May 2016

SRA: in doghouse with disciplinary tribunal for dropping most serious charges

SRA: in doghouse with disciplinary tribunal for dropping most serious charges

The Solicitors Disciplinary Tribunal (SDT) has slammed a prosecution by the Solicitors Regulation Authority (SRA) in the strongest terms, saying it was “appalled and dismayed” that the regulator had asked it to “rubber stamp” a deal which saw charges of dishonesty dropped at the last minute after the solicitor involved admitted lesser allegations.

Accepting admissions over breaches of code of conduct and accounting rules from Liverpool solicitor Bernadette Teresa McDonald – who was accused, among other things, of working as a sole practitioner without authorisation – the SRA told the tribunal on the eve of the hearing that it would be offering no evidence on other allegations, which included that of dishonesty.

The SDT reacted with fury, observing it had been put in the “very difficult position” of being told that allegations had been withdrawn less than 24 hours before a three-day hearing, despite the regulator having “implied that it had the evidence to prove the allegation”.

The respondent’s “skeleton argument seemed to signal a complete change of direction”, the tribunal said, continuing: “However, the allegations the respondent had been facing included lack of integrity and dishonesty. These were the most serious allegations that can be raised against a solicitor. What had changed?”

It went on: “If the allegations were untenable, when considering all the evidence in the round, this could and should have been established earlier. The situation reeked of a deal of convenience. The tribunal was not happy to act as a rubber stamp.”

The tribunal recorded that in defending its decision, the SRA had said the allegations of lack of integrity and dishonesty were “merely one facet of an overarching concern about the respondent’s ability to comply with her regulatory obligations” and argued “a proportionate and appropriate use of its resources and the profession’s money” did not require a three-day trial.

However, the tribunal responded that: “The [SRA] had stated it did not want to spend the profession’s money pursuing the allegations but that is [its] role.”

Ms McDonald had worked in partnership with another solicitor in the two-partner firm, BMD Law, which specialised in conveyancing and personal injury, and at one time employed 10 non-solicitor fee-earners. At the time of the hearing she was in a new partnership and the firm had four fee-earners, including the two partners.

Under the original allegations, Ms McDonald, who was already operating with restrictions on her practising certificate that required her to submit regular accountants’ reports and attend a course on the accounts rules, was accused, among other things, of giving false and/or misleading information regarding a solicitor’s status at the firm, and between September 2010 and 2011 of practising as a sole practitioner without SRA approval.

Under the revised charges, she was accused of, and admitted, a number of accounts rule breaches, including failing to submit the accountants’ reports and withdrawing client money from client account improperly.

The tribunal queried why a solicitor Ms McDonald claimed was her former partner had not been asked to give evidence, saying it was both “baffled” and “significantly concerned by this fact”, since “the allegations of lack of integrity and dishonesty hinged on whether [he] was or was not a partner.”

The tribunal found that Ms McDonald “flagrantly disregarded her regulatory obligations and was entirely culpable for her misconduct”. While it acknowledged that “no harm to the public or reputation of the profession had been identified”, it fined her £10,000 and ordered her to pay costs of a further £15,000.

For her “protection and support”, it also placed a restriction on her practising certificate “that she may not practise as a sole practitioner or sole manager or sole owner of an authorised body”.

An SRA spokesman said: “The agreed position was reached shortly before trial. The proposed position followed constructive discussions and proper assessment of our case and, as our representative said to the tribunal, Ms McDonald made realistic admissions to most of the allegations.

“Judgments are often made as cases reach trial and respondents engage with the detail of the allegations. As the tribunal noted, Ms McDonald’s skeleton argument ‘seemed to signal a complete change of direction’.

“Agreed outcomes have been used for a number of years. They can save both cost and time while providing appropriate public protection. That is in everybody’s interests and we are disappointed that the tribunal does not support the approach.”

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