The Discipline Tribunal in profile

Most solicitors’ contact with the Scottish Solicitors’ Discipline Tribunal (SSDT) is limited to the Journal articles summarising its decisions. No doubt, most solicitors would like to keep it that way! However, the Tribunal would like the profession to know more about what it does, its relationship with the Law Society of Scotland and the challenges it faces in the current regulatory environment. The Tribunal is an important part of solicitors’ regulation. It helps protect the public and maintain the reputation of the profession by upholding its standards.

What is the Tribunal?

The Tribunal is an independent, formal judicial body constituted under the Solicitors (Scotland) Act 1980 as amended. It is subject to the appellate jurisdiction of the Court of Session. The Tribunal plays an essential role dealing with disciplinary issues which arise from legal practitioners’ conduct. It is a separate body to the Law Society of Scotland.

The Tribunal is made up of 12 solicitor and 12 non-lawyer members (sometimes referred to as lay members). Solicitor members are not paid, while lay members are paid by the Scottish Government. Solicitor members are nominated by the Society and appointed by the Lord President. Vacancies are advertised on the Tribunal’s website, the Society’s website and in the Journal. Non-lawyer members are nominated through the public appointments system and appointed by the Lord President. At each hearing, the Tribunal comprises two solicitor and two non-lawyer members.

As well as nominating the solicitor members, the Society prosecutes practitioners before the Tribunal, and also has an obligation to fund the Tribunal. In the last year for which figures are available, and without counting any costs recovered from solicitors found guilty of misconduct, the costs of running the Tribunal amounted to £13.97 per annum for each solicitor with a practising certificate. The Tribunal and the Society operate independently, despite the tensions inherent in this statutory system.

Who can be prosecuted before the Tribunal?

Solicitors, conveyancing and executry practitioners and registered European and foreign lawyers can be prosecuted before the Tribunal. The Faculty of Advocates has its own complaints committee and disciplinary tribunal.

What kind of business does the Tribunal deal with?

The Tribunal hears:

• complaints of professional misconduct;
• complaints that a solicitor has been convicted of an act involving dishonesty or any other criminal offence which resulted in a fine equivalent to level 4 on the standard scale or imprisonment of more than 12 months;
• appeals stemming from the Society’s determinations regarding unsatisfactory professional conduct; and
• applications for restoration to the roll of solicitors in Scotland or for removal of a restriction on a practising certificate.

All complaints about legal practitioners are made in the first instance to the Scottish Legal Complaints Commission (SLCC). It refers conduct matters to the Society. After investigation, the Society prosecutes cases it considers might constitute professional misconduct before the Tribunal. Professional misconduct is defined in Sharp v Law Society of Scotland 1984 SLT 313 as a serious and reprehensible departure from the standards of conduct to be expected of competent and reputable solicitors. It is necessary to consider all the circumstances and the degree of the practitioner’s culpability. There are many ways of committing professional misconduct, both in a practitioner’s work and private life. The Tribunal’s website www.ssdt.org.uk contains all Tribunal decisions of the last 15 years.

On average, the Tribunal receives about 30 new cases a year. The statistics and a summary of the business for each year are available in the Tribunal’s annual reports.

What procedure does the Tribunal follow?

The Tribunal is governed by the Scottish Solicitors’ Discipline Tribunal Procedure Rules 2008, which are approved by the Lord President. The Tribunal intends to redraft its rules in 2020. A consultation on proposed themes in the new rules is open until 31 January 2020. The consultation document is available on the Tribunal website.

The complainers (most frequently the Society), produce a complaint which is lodged with the Tribunal, and the respondent practitioner is invited to submit answers to that complaint. Frequently, there is adjustment of the pleadings. This is similar to civil procedure, but some terminology is borrowed from criminal procedure. For example, the solicitor acting on behalf of the complainers is called the “fiscal” and the Tribunal decides whether a respondent is “guilty” or “not guilty” of professional misconduct. Solicitors sometimes represent themselves at Tribunal hearings. Others are represented. Representation does not require to be by a solicitor.

There are no strict rules of evidence. Hearsay is admissible. There is no requirement for corroboration. The Tribunal has the right to control its own procedure. Procedural hearings are used for case management. More frequently in recent years, the Tribunal has had to deal with legal debates and pleas in bar of trial. Evidence is given on oath or by way of affirmation. The Tribunal can receive affidavit evidence.

The burden of proof in professional misconduct cases is on the complainers. The facts in a professional misconduct case must be proved beyond reasonable doubt, notwithstanding that the Tribunal deals with the civil rights of solicitors. The Tribunal is one of the last tribunals to use this standard and consulted in 2019 on whether it should, like the English Solicitors Disciplinary Tribunal, move to the civil standard. The Tribunal decided that it would continue to apply the criminal standard meantime but that the matter would be kept under review. The reasons for its decision are available on the “News” section of the Tribunal website. In respect of appeals relating to unsatisfactory professional conduct, the standard of proof is on the balance of probabilities.

If the Tribunal is not satisfied that the practitioner is guilty of professional misconduct, it will find the practitioner not guilty. However, if it considers that the practitioner may be guilty of unsatisfactory professional conduct it must remit the complaint to the Council of the Law Society of Scotland for consideration.

What sanctions can the Tribunal impose?

In professional misconduct cases the Tribunal can censure practitioners. This is the equivalent of an admonition in the criminal courts. It can impose a fine of up to £10,000. The Tribunal has the power to order that a practitioner’s practising certificate is made subject to such terms and conditions as the Tribunal may direct. Often the condition imposed is that the practitioner practises as an assistant to another solicitor approved by the Society. However, any condition can be imposed.

The Tribunal can suspend a solicitor from practice for such time as it determines. The Tribunal can also order that a practitioner’s name is struck from the roll of solicitors in Scotland. If a person has already removed his/her name from the roll, the Tribunal can prohibit restoration to the roll. Last year, five solicitors were struck off the roll. In the previous year, seven solicitors were struck off. These individuals can no longer practise or hold themselves out to be solicitors. There are restrictions on legal practices employing struck off or suspended solicitors, even in other roles. The Tribunal also has the power to award compensation of £5,000 for any loss, inconvenience or distress to any secondary complainer directly affected by the misconduct. Secondary complainers are the people who have made the original complaint about a solicitor. They are often, but not limited to, clients of the respondent solicitor.

The sanctions for solicitors convicted of crimes of dishonesty or other serious offences are similar to those for misconduct, although there is no power to issue a fine or compensation in these cases.

In appeals cases the Tribunal can quash or confirm the determination of the Society. It can quash the censure accompanying the determination. It can quash, confirm or vary the direction being appealed against. It can order retraining of the practitioner, impose a fine not exceeding £2,000 and award compensation up to £5,000.

The Tribunal’s indicative sanctions guidance is available on its website.
It gives information about the appropriate use of each sanction.

The Tribunal has the power under the 1980 Act to award expenses. Expenses are usually awarded to the successful party and include the expenses of the Tribunal. These can run to several thousand pounds and are a serious consideration when solicitors are considering how to run their defence or whether to bring an appeal.

Every decision of the Tribunal is published in full, subject to the terms of para 14A of sched 4 to the Solicitors (Scotland) Act 1980. Occasionally publicity is deferred, for example pending the conclusion of criminal proceedings. The impact of publicity on solicitors found guilty by the Tribunal is significant. The decisions appear on the Tribunal website and are reported in the Journal.

What does the future hold?

The Tribunal is proud of its work over many years to protect the public and uphold the standards of the profession. It has some concerns about the convoluted complaints process, the delay in cases reaching the Tribunal, the absence of a fitness to practise regime for solicitors, the current arrangements for appointing solicitor members, and the inability to impose interim orders on solicitors whose actions may be a danger to the public.

Legal regulation is under scrutiny following the wide-ranging proposals in the report following the Roberton review of legal services regulation in Scotland. Most pertinent to the Tribunal was the suggestion that there should be a single disciplinary tribunal for all legal professionals. What is essential is the continuation of a disciplinary tribunal for solicitors that is completely independent of the regulator, be that the Law Society of Scotland or some new regulator. The Tribunal is represented on the Scottish Government working group which is reviewing the Roberton report proposals and other possible options. It will continue to make suggestions for improvement which it believes will satisfy its aims of protecting the public and upholding the reputation of the profession.