Facing Disciplinary Proceedings

Transcription

1 Facing Disciplinary Proceedings LawCare Helplines For Solicitors, Law Students, Trainee Solicitors, Costs Lawyers, Paralegals and Chartered Legal Executives in England and Wales: For Solicitors, Trainee Solicitors and Law Students in Scotland, Northern Ireland and the Isle of Man: For Barristers, Barristers Clerks and Judges in England and Wales; Judges and Barristers in Northern Irelandl and Judges, Advocates and Devils in Scotland: For Solicitors, Trainee Solicitors and Law Students in the Republic of Ireland: For Barristers and Pupils in the Republic of Ireland: LawCare Ltd. Company Registration No Registered Office: 50 Broadway, London SW1H 0BL Registered as a Charity in England and Wales no and in Scotland no. SC Please note that information in this pack applies to solicitors in England and Wales only.

2 Introduction In May 2008, addressing a joint meeting of LawCare, the Solicitors Assistance Scheme and the Solicitors Benevolent Association, Paul Marsh, Vice President of the Law Society of England and Wales, said that Stress is the enemy of good business and the best friend of mistakes The legal profession is a stressful one, and most solicitors will make a mistake or be the subject of a complaint at some point during their career. In some cases this will be a major issue, leading to a large claim on the firm s insurance and disciplinary proceedings against the firm or the individual solicitor by the Solicitors Regulation Authority. For the solicitor concerned this can be an extremely distressing and worrying time. Our experience at LawCare has been that most solicitors are very hard-working, competent, thorough, knowledgeable and take great professional pride in serving the very best interests of their clients. Failure in any of these areas hits them hard. One solicitor described it in these words: The first reaction is shock and horror that you have done something wrong or made a mistake that has career implications. You start to lose sleep and can't think of anything else and you lose your concentration and ability to work. Then you face the decision of whether to own up and, if so, who to tell: your colleagues, Partners, the clients involved or the Law Society. Panic soon follows, together with the realisation of the possible implications: having to tell family and friends - the loss of their respect - telling colleagues and their disappointment in being let down, telling clients who have trusted you and believed in your ability. The next feeling is shame, which never leaves you. You carry it like a large notice pinned to your back. How could you have allowed yourself to get into this position? The disciplinary process can be extremely lengthy, which simply adds to the pain of the experinece, but however minor or serious your mistake, there are organisations which can help you, and things which can be done to help you cope and to come out of the experience a better lawyer. Minor Mistakes The reaction you are facing will depend largely on the mistake you have made. Most solicitors make mistakes, but minor errors are usually dealt with within the firm. Trainees are at particular risk of making mistakes due to their inexperience, but the firm is responsible for providing adequate training and supervision, and ensuring that they are not given matters to deal with for which they are not yet trained or qualified. Trainee errors should be dealt with in a positive way and taken as an indication that more training is needed, not necessarily as a matter for disciplinary action. The most common negligence claims are for missed time limits these amount to around 30% of all professional negligence claims against solicitors. Other major causes are delay, drafting error, poor communication - basically almost anything except getting the law wrong. 90% of claims are related to administrative failures, only 10% relate to lack of legal knowledge. This may be due to the fact that lawyers study and train in the practice of law,

3 not business management, administration and the art of clear and unambiguous communication. Whilst probably every solicitor will face a claim at some point during their professional career, that doesn't necessarily mean that they WILL have been negligent. The fact that a client brings a claim doesn't automatically mean that the solicitor has done anything wrong. Most negligence claims don't lead to disciplinary action. The fact that a solicitor has made an error- missed a time limit, drafted something incorrectly, failed to do something - means that their client has a civil right of action against them, and could be awarded damages. It doesn't always mean they have done something that would involve a sanction by the SRA or referral to the SDT. The exceptions to that are errors such as, for example, breaching an undertaking - this is both a civil wrong and a disciplinary offence, and could result in a claim against insurers as well as a referral to the SDT. Disciplinary Action within the Firm If you are an employee and believe you have made a mistake, the sooner you report it, the better. Lapse of time usually only means that the hole you have begun to dig just gets deeper and deeper. Errors are most easily corrected as soon as they are realised to have occurred. In particular, failure to deal with the mistake expeditiously could affect the firm s insurance policy and lead the Insurer to refuse to cover the claim on the ground of nondisclosure of a material fact.. So, if necessary, enlist the moral support of a colleague and admit your mistake to a superior within the firm frankly and honestly. It may help if you state that you are prepared to do whatever is necessary to put it right, including undergoing additional training if appropriate. The experience may be valuable in preventing bigger mistakes later on, and in helping you identify and deal with a weak area in your work. If the firm takes the decision to take disciplinary action against you, then check your contract and look into the firm s own disciplinary policy for guidance on what you should do. Consider whether there were any mitigating circumstances and make careful notes of exactly what happened, when and why. SAS (the Solicitors Assistance Scheme) exists to give up to an hour of free initial legal advice to a solicitor. (See Organisations which can help for details.) Your employer may decided that an oral warning, plus retraining, is sufficient to deal with the issue. You should establish whether this is part of a formal disciplinary procedure or not and whether or not it is intended to be recorded on your personnel file as a formal warning. If it is not a formal warning, then it cannot be used against you in the future. If your firm takes a particularly dim view of the situation and you are suspended, then ensure that the period of your suspension is clearly defined from the start, and use the time you are away from work constructively primarily to prepare your case and help your employer make a full investigation. You might also attend training courses, or read around your field of work. It might be wise to bring your CV up to date and research the legal jobs market just in case. You should also provide as much support as possible to those covering your work in your absence and be available to advise on files when required.

4 The Legal Complaints Service The LCS deals with complaints about poor service or fees, but they advise the complainants initially to speak to their solicitor directly, or the complaints handling partner at the firm. If the LCS goes on to investigate a complaint they have the power to- insist that the matter is put right at the firm s expense require the firm to reduce a bill require the firm to pay compensation refer the matter to the SRA if it involves misconduct, or if they have had repeated complaints about the same solicitor or firm. If you are the subject of a complaint to the LCS, ensure that you are completely aware of the exact nature of the complaint and the issues around it. Establish whether the complaint is simply about inadequate professional service, or whether misconduct or dishonesty is alleged. Inadequate professional service can include matters such as persistent failure to return phone calls or reply to correspondence, or unreasonable delays in processing a matter. The LCS plan to publish complaints at an early stage at some point in the future, although the Law Society are opposed to this. The Solicitors Regulation Authority The primary role of the Solicitors Regulation Authority is to ensure compliance with the practice rules and codes of conduct, and to discipline solicitors who fail to comply. The SRA also issues practising certificates, without which no solicitor may practice. If the Authority believes that a solicitor has failed to act in accordance with the rules it has the power to- give reprimands give warnings or advice refer cases of serious or repeated misconduct to the SDT fine 5,000 for each offence impose sanctions on the solicitor issue a practising certificate which is subject to conditions for example, that the solicitor is not entitled to practice alone, or must lodge half-yearly accounts with the Authority. suspend or withhold a practising certificate when- The SDT has suspended a solicitor A solicitor has been convicted of a serious offence A solicitor has been declared bankrupt (although the solicitor may apply for an immediate termination of that suspension). All judgements for debt against solicitors are reported to the SRA by the court In extreme circumstances, particularly where dishonesty is suspected, the SRA may use its statutory powers to initiate an intervention.

5 Interventions Mr Justice Neuberger described the purpose of an intervention as allowing the SRA to: protect the public interest against the activities of dishonest or incompetent solicitors. Mr Justice Carnwath stated: The intervention procedure has been recognised as being draconian in some respects but necessary for the protection of the public. An intervention is not a takeover or a disciplinary outcome. It is governed by statutory procedures and is a regulatory step taken only when the SRA believes that it is necessary. For the solicitor concerned, and the staff at the firm, it is extremely traumatic, damaging and expensive. The costs of the intervention, which are very high, may be sought from the solicitor. It is not an option to seek to fall back on when you are unable to dispose of your practice through the usual methods. If you believe that a situation has arisen where you may be intervened in, or you need to close your practice due to ill health, retirement or other reasons, then you may wish to contact the Solicitors Assistance Scheme who will be able to assist you in doing so with the least possible difficulty. (See Organisations which can help for details.) Usually there will be up to eight days written notice that the SRA intends to intervene. However, this is not always the case, especially when dishonesty is suspected and advance warning would enable evidence to be destroyed. The notice gives the solicitor the opportunity to respond and in some cases this response can prevent the intervention taking place, so it is important that the letter is not ignored and that immediate specialist advice is sought. On receipt of the notice, the solicitor has three choices: 1. Allow the intervention to go ahead as planned. This is very expensive and generally ends the solicitor s legal career. 2. Dispose of the practice. This is preferable because it is easier on both the solicitor and the clients. However there may be problems in the prospective successor practice getting acceptable indemnity insurance cover, and often with only four or five days to dispose of the practice, this may be extremely difficult. The SRA will need to approve the disposal. 3. Contest the intervention. The solicitor has the right to appeal, but this must be done immediately, since the notice may have arrived only two or three days before the planned intervention. Expert advice should be sought, and how this is to be done will depend on the circumstances. On the day of the intervention, several things will happen. The firm s bank accounts will be frozen (this may have occurred beforehand) The intervention officer will meet with the intervened solicitor to explain what is happening The agent (usually a local firm acting for the SRA in this regard) will seize all client papers, files, wills, deeds and other items to return them to the clients. Client money will also be returned to the clients The agent will also seize all bookkeeping and accounts materials and systems.

6 The agent will identify any urgent matters completions, court hearings and will ensure that the clients are directed to alternative advice. The staff will be dismissed and the offices closed. In most cases the solicitor is referred to the Solicitors Disciplinary Tribunal. The solicitor being intervened is liable for all the costs of the intervention, which can be as high as 50,000, as well as any money discovered to be missing from client or office accounts. His or her practising certificate will be suspended. The SRA will prosecute more serious breaches of the rules. The Solicitors Disciplinary Tribunal The Tribunal is an independent body set up by statute. If the solicitor has repeatedly behaved unprofessionally, seriously compromised the interests of a client, taken advantage of a vulnerable person, discriminated against a person or group or otherwise brought disrepute to the profession then it is likely that the SRA will consider it in the public interest to refer the matter to the SDT. In 2007 the judgements of the tribunal were as follows: Struck off 32% Suspended 16% Fined 40% Reprimanded 9% Cleared or dismissed 3% A QC who represents solicitors before the Tribunal said of his clients Almost without exception they are honest men and women caught up in situations that worry them. In certain situations the SRA will decide not to refer a matter to the SDT when it would normally do so. These include significant mental or physical ill health, and old age, where the solicitor is no longer practising. If you are the subject of an SDT hearing, it is important that you have expert advice and representation as soon as possible. Ignoring the issue will not make it go away it will just make it worse. Organisations which can help The Solicitors Assistance Scheme The SAS is an independent organisation which provides legal advice for solicitors. The first hour s consultation is free, but ongoing support thereafter has to be agreed with the individual SAS panel member. In many cases this is at a reduced rate, and occasionally free The SAS can be particularly helpful in preventing a threatened intervention, and have members who are expert at winding up problem practices. If you are facing intervention it is recommended that you contact an SAS panel member immediately.

7 SAS panel members have a wide variety of specialisms, and many are experienced in helping with client complaints, disciplinary matters, tribunals and other such issues. For help call to be referred to an SAS member near you. There is also a website at If you cannot make contact direct with the SAS, please speak to us and we will try and help you to do so. The Ethics Guidance Team The SRA s Ethics Guidance helpline is available on Its function is to give guidance on the interpretation of the Rules governing Professional Conduct. You can call anonymously. The SRA s website can also be helpful and includes a step-by-step guide on how to properly close down a practice. The Practice Advice Service This helpline is provided by the Law Society to help solicitors and their staff with issues of legal practice, policy and procedure. There is a team of experienced solicitors who can also assist with questions about the anti-money laundering regulations. Lines are open from 0900 to 1700, Monday to Friday. Lawyerline A Law Society advice line for solicitors needing help with general complaint handling The Solicitors Benevolent Association The SBA provides financial support for solicitors and their dependents in reduced circumstances, but will not help with the costs of defence in a disciplinary matter, or provide living costs for a solicitor who has been struck off or suspended for dishonesty or misconduct. However, every case is different and will be considered on its own merits, and help may still be available to the family, so if there are financial issues it is always worth contacting the SBA. The number to call is and the website is at LawCare LawCare offers support via its freephone helpline ( ) on health and emotional issues such as stress, depression and addiction to alcohol or drugs. Because these are often factors in disciplinary situations, LawCare has offered support in the past to many lawyers facing this particular problem, and has occasionally advised the tribunal when health matters have been a factor in disciplinary proceedings. LawCare volunteers can also be a great help. As fellow lawyers who have often been through something similar, they act as befrienders, being available to talk whenever required and offer empathy and strength. Where necessary, LawCare can also refer you for professional counselling or to other specialised agencies.