SRA investigations: what happens if you are referred to the Solicitors Disciplinary Tribunal?

In Part 1 and Part 2 of this series, Professional Discipline solicitor Hannah Pilkington looked at the SRA investigation and its powers to impose an internal sanction. In this Keynote, we focus on referral to the Solicitors Disciplinary Tribunal (SDT), including which cases are most likely to be referred and what that process looks like.

Referrals to the SDT can be very costly in terms of legal fees, sanctions, and costs orders, as well as the huge stress of the process for solicitors and significant reputational damage. It is vital to obtain specialist advice and support at an early stage.

Who decides if my case is sent to the SDT?

Once the SRA investigation has been completed, the Investigation Officer prepares a bundle with the Notice, SRA evidence bundle, your representations, and any documents. Those are considered by an Authorised Decision Maker (ADM) of the SRA. The Investigation Officer will make a recommendation as to the outcome – either closure, an internal sanction, or referral to the SDT.

How do they decide?

When considering whether to refer to the SDT, the ADM must apply a two-part test:

• whether there is a realistic prospect of the SDT making an order in respect of the allegation; and
• whether it is in the public interest to make the application before the SDT.

This test should be addressed in representations prepared on your behalf, with a full analysis as to why there should be no referral, if the ADM is to be persuaded not to follow a recommendation to refer, or why the allegations cannot be made out.

Which types of cases are likely to be referred?

There are certain types of cases which the SRA is more likely to refer, including:

• where there are factual disputes which need to be resolved at a hearing;
• allegations of:
  • dishonesty or lack of integrity;
  • abuse of trust;
  • sexual and violent misconduct, discrimination, or harassment;
  • criminal behaviour.
• Where it considers that any financial penalty will likely be above the level of its internal sanction powers of £25,000.

Factors which can weigh against the public interest in referring the case include the proportionality of issuing proceedings, and the length of time since the alleged conduct. If you are experiencing health issues which may be worsened by proceedings being referred, that can also be taken into account. You should seek advice on providing medical evidence and making such an argument.

Next steps if your case is referred to the SDT

You will be informed by the SRA in writing including a detailed decision. If you receive notice that your conduct is being referred to the SDT, you should seek immediate legal advice.

The SRA will then either prepare your case in-house or instruct an external firm. Typically, cases are issued at the SDT within about 12 weeks of the referral decision being made. However, there are often delays.

What can I do in the meantime?

You should ensure that you have specialist advice and representation in place to protect your interests at the SDT before the case is issued, to avoid time pressures or delays.

You can also use this time to undergo additional training or CPD, improve systems or practices, and collate any additional documents so that evidence is available by the time you need to respond to the case at the SDT. You may need to think about witnesses you want to call.

Is it too late to reach agreement with the SRA on a sanction?

We recommend that you take advice before making a proposal, but you can indicate to the SRA early on (and on a without prejudice basis) that you would like to reach agreement – known as an Agreed Outcome (“AO”) once a case has been referred.

Once a case has been referred to the SDT, the SDT needs to approve any AO and make an order. It has the ultimate power to decide sanction.

How to reach an Agreed Outcome

If this is done early, and discussions are successful, this can mean that you can reach an agreement before you incur the costs of preparing a full formal response and attending hearings.

The SRA will expect discussions to take place on a without prejudice basis and will usually want you to make the first proposal on the admissions you would make, the sanction you wish to agree, and payment of the SRA’s costs. They will often only agree to an AO if full admissions (or very substantial admissions) are to be agreed.

You will need to explain why the proposed sanction is reasonable and apply the SDT’s sanctions guidance and why it is in line with the SRA’s sanctions guidance. We can assist you with these proposals to increase the prospects that this is accepted by the SRA and approved by the SDT. Discussions on the terms of an AO can take some time as it will need to be considered and approved by the SRA.

If terms are agreed with the SRA, a detailed document is drafted including all of the agreed underlying facts, admissions, and submissions as to why the sanction should be approved.

Once agreed, the application for approval of an AO is submitted to the SDT. The SDT usually consider this on the papers (without a hearing) and can approve or reject it, or call a case management hearing to discuss it further.

If approved, the SDT will usually announce the order in open court and then publish the AO agreement. It is important that you consider the impact of publication.

If you have questions or concerns about an SRA investigation, please contact Hannah Pilkington.