The Law Society is to conduct research on the feasibility of establishing a standalone defence union to support members hauled before the Solicitors Disciplinary Tribunal.
Funding representation from Society funds has been ruled out, on the ground that this is not a permissible use of members’ money under the 2007 Legal Services Act. Chancery Lane also believes directly funding defences against SRA proceedings would ‘undermine public confidence in the profession and pose risks with the potential to compromise the Society’s reputation for upholding standards’.
These are among the conclusions of a special committee of inquiry set up by the Society’s governing council in May 2024 to consider extra support for solicitors subject to disciplinary proceedings. The initiative was originally proposed by Paul Sharma, Council member for Central London, who has since died.
SDT proceedings can have severe consequences for solicitors, as the committee acknowledged, including significant financial costs, reputational harm and wellbeing impacts. Respondents typically bear their own defence costs, which are rarely recoverable from the SRA, and usually SRA prosecution costs too - along with fines and higher professional indemnity insurance premiums. Insurance for defence costs is generally excluded from PII minimum terms.
The committee produced an interim report in July and its final recommendations have been endorsed by Council.
In its final report, the committee stresses that a defence union funded by member premiums has been explored before but found to be unfeasible for several reasons. These include the fact that the Society would risk assuming financial liability and the need for a change in legislation.
The Society has, however, agreed to research whether solicitors would support an independent defence union and be willing to make the necessary voluntary contributions.
The committee considered but also ruled out the reinstatement of compulsory SDT defence cost cover in the PII minimum terms and conditions (MTCs). This was removed in 2010, creating a divide between large firms that often have some cover and small firms that do not.
Reinstatement is not viable for many reasons, the committee said, including that the SRA sets the PII MTCs and not the Society. Insurers would also seek compensatory changes that would reduce overall protection, it added.
Other proposals looked at included reviewing the civil burden of proof in SDT cases, but as ’the probability of reversing the change is extremely low’, no further action is planned.
A dedicated email/helpline for solicitors under investigation was also found to be problematic, as the Law Society risks incurring liabilities for losses consequent on advice. The Practice Advice Service provides signposting for members in this position, but cannot offer legal or regulatory advice. The Society will investigate whether there is a ‘gap’ in provision, but ’any new contact channel would require careful consideration of scope, liability and costs’.
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