Cases becoming more complex, Discipline Tribunal reports
The number of cases before the Scottish Solicitors' Discipline Tribunal is stable, but cases are becoming more complex and require more sitting days, according to the tribunal's annual report for 2018-19, just published.
A total of 35 new cases were received, compared with 34 the previous year, but 58 sitting days were required, as opposed to 38 and 47 in the two previous years. One long running case accounted for several additional days, but the tribunal also heard many more applications regarding procedural and evidential issues than it has in the past.
Forty cases were decided, including seven appeals against decisions by the Law Society of Scotland on alleged unsatisfactory professional conduct. On discipline cases, there were 29 findings of professional misconduct, one case following a criminal conviction over the threshold of seriousness, two findings of not guilty and one further acquittal where the case was remitted to the Law Society of Scotland for a possible finding of unsatisfactory professional conduct.
Five solicitors were struck off, two suspended from practice, four had their practising certificates restricted to require their supervision (one with a censure and fine in addition), 11 were fined and eight censured (some receiving both these disposals).
The tribunal records that after a consultation and special general meeting, it decided to keep the criminal standard of proof (beyond reasonable doubt) rather than the civil standard (balance of probabilities) in professional misconduct proceedings, as there was no evidential basis to apply a different standard. On the face of it, the conviction rate is high; and the standard of proof may be considered as part of a wider review which the tribunal hopes will also tackle issues such as the delay in complaints reaching the tribunal, and the absence of a fitness to practise regime.
It updated its guidance on expenses following the judicial review brought by Tasmina Ahmed-Sheikh, which was dismissed as incompetent because she had failed to exhaust her statutory appeal rights; the judge expressed the view that the tribunal had not erred in law but suggested further guidance be published. It has also begun to redraft its procedure rules, which are 11 years old and considered to be no longer fit for purpose, aiming for "user-friendly rules in plain English which assist parties and further the objectives of the tribunal".
Commenting on the Roberton review proposals, the chairman, Nicholas Whyte, states in the introduction: "Most pertinent to the Tribunal was Esther Roberton’s suggestion that there should be a single disciplinary tribunal for all legal professionals. The Tribunal believes that the continuation of a disciplinary tribunal for solicitors that is completely independent of any regulator, is essential. The Tribunal has made suggestions for improvement which it believes will satisfy its aims of protecting the public and upholding the reputation of the profession."