In October 2009, the Gazette carried an article by me (tinyurl.com/63k79bj) in which I criticised the general policy of the Solicitors Regulation Authority to publish on its website the details of forthcoming disciplinary cases in the Solicitors Disciplinary Tribunal.
I argued that this was unfair and discriminated against those with unusual surnames. I told the story of a client with an unusual surname who had been prosecuted in the tribunal. Very serious allegations had been made against him, which he had denied, but which had been published. At the tribunal he admitted to far less serious matters than those alleged against him. This admission was accepted by the SRA and the more serious allegations abandoned.
The result was a modest fine. My client complained that the disproportionate effect of the publicity had devastated his business and unfairly achieved a far greater penal effect than that imposed by the tribunal.
I was surprised by the amount of feedback I received from solicitors after the article was published. It seemed to have struck a chord, but by no means all of the responses agreed with me. Fair enough - but I thought I was right.
Now I know I was right. The story I have to tell is a chilling one which vividly illustrates the unfairness of the SRA’s present policy.
I recently represented two solicitors charged in the SDT with very serious offences. They were accused of having facilitated ‘organised, systematic mortgage fraud’, and of having done so recklessly and with a lack of integrity.
They worked in a specialist conveyancing firm. Throughout the proceedings they had vigorously maintained not only that they were entirely innocent, but that the allegations were misconceived. As any solicitor can imagine, an allegation against a solicitor conveyancer of having ‘facilitated organised, systematic mortgage fraud’ is about as serious as it gets.
If a mortgagee were to learn of such an allegation, the solicitor would probably be removed from that lender’s panel in the blink of an eye.
The SRA resolved to publish the details of the allegations against the two solicitors. Fortunately, the respondents were represented by Andrew Hopper QC, a solicitor silk who has unparalleled experience of representing solicitors in trouble with their regulator. Mr Hopper tried to persuade and cajole the SRA into backing down.
All the arguments that could have been properly deployed were put before the SRA, which was entirely unswayed and insisted it would publish. Judicial review proceedings were threatened and eventually commenced shortly before the disciplinary hearing. This had the effect of preventing the proposed publication, though there was insufficient time in which to obtain (or fail to obtain) an injunction before the tribunal hearing took place.
I was instructed to represent the two solicitors and met them a few weeks before the tribunal hearing. I realised within about three minutes of setting eyes on them that they were young, intelligent and patently honest, and most unlikely to have committed any serious disciplinary offence.
When the case came before the SDT, it was clear by the end of the prosecutor’s opening speech that the SRA could not prove a single mortgage fraud, let alone the ‘organised, systematic mortgage fraud’ that underpinned the most serious allegation. By the close of the prosecution case, most of the case against the solicitors had been shown to be unsustainable and was dismissed by the tribunal. After the solicitors gave evidence, the remainder of the case was thrown out and they were awarded a substantial proportion of their costs.
As a result, the judicial review proceedings were settled by the SRA, reversing its decision to publish and making a contribution to costs.
The SRA has a very high success rate in the SDT. It is rightly scrupulous in seeking to ensure that only the ‘right’ cases are referred to the tribunal. But every organisation is bound to make mistakes, and the SRA is no exception. In the case I have described, justice was ultimately done.
But what would have happened if the SRA had gone ahead and published the allegation that the solicitors had recklessly ‘facilitated organised, systematic mortgage fraud’? It is not hard to imagine that the destruction of their practice would have ensued. Why? Because allegations of which they were eventually shown to have been innocent would have been published on the SRA website. Had that happened they would have had no redress - there is no compensation fund available for solicitors and firms who have suffered substantial and potentially terminal losses as a result of SRA decisions which turn out to have been wholly misguided and unfair.
This case demonstrates the fundamental flaw in the SRA’s publication policy. As I wrote in the 2009 article: ‘The SRA has a very wide range of regulatory powers. It can impose conditions upon practising certificates, and in this way it can efficiently protect the public interest pending the resolution of disciplinary charges by the SDT.
It has no need to publish those charges to the world at large. Often it does not impose any conditions upon solicitors who are facing charges. Whether it does or not, a careful judgement is made as to what the public interest requires. Such conditions are inevitably imposed for the protection of the public, and are, properly, published on the SRA website.’ (There is of course a right of appeal against the imposition of practising certificate conditions: there is no right of appeal against a decision to publish disciplinary allegations on the SRA website.)
That article was met by silence from the SRA. I hope that this one will not be ignored and that the SRA now agrees with the concluding sentence of the 2009 article: ‘It is time that the SRA reconsidered and abandoned its policy of indiscriminate publication and formulated a more rational and proportionate one.’
Gregory Treverton-Jones QC is a barrister at 39 Essex Street chambers, London, and co-author of The Solicitor’s Handbook