Dishonesty in SDT proceedings

If you are a solicitor facing an allegation of dishonesty, we strongly recommend that you contact a Solicitors Disciplinary Tribunal (SDT) defence specialist straight away.

If the Solicitors Regulation Authority (SRA) believes you have acted dishonestly, you will be referred to the SDT and if there is a finding against you in the Tribunal, the Tribunal will almost certainly strike you off.

We often find that solicitors who instruct us on dishonesty cases at the later stages of SDT proceedings could have strengthened their case by taking different steps at earlier stages of the SRA investigation.

The test for dishonesty

In Ivey v Genting Casinos [2017] UKSC 67 the Supreme Court said that the test for dishonesty is as follows:

‘When dishonesty is in question the fact-finding Tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’

It is important to note that the Supreme Court has stated that the Tribunal must first establish the solicitor’s actual state of mind.

The importance of the solicitor’s state of mind on the question whether his or her conduct was dishonest is amplified in other sections of the Supreme Court’s judgment. In particular, in paragraph 60 of Ivey the Court said:

‘Take for example a man who comes from a country where public transport is free. On the first day he travels on a bus. He gets off without paying. He never had any intention of paying…

…In order to determine the honesty or otherwise of a person’s conduct, one must ask what he knew or believed about the facts affecting the area of activity in which he was engaging. In order to decide whether this visitor was dishonest by the standards of ordinary people, it would be necessary to establish his own actual state of knowledge of how public transport works. Because he genuinely believes that public transport is free, there is nothing objectively dishonest about his not paying on the bus. The same would be true of a child who did not know the rules, or of a person who had innocently misread the bus pass sent to him and did not realise that it did not operate until after 10.00 in the morning…

…what is objectively judged is the standard of behaviour, given any actual state of mind of the actor as to the facts.’

In short, although the test is objective, in the sense that the Tribunal must decide whether a solicitor was dishonest by applying the objective standards of ordinary decent people, that objective decision must be based on the solicitor’s state of mind at the time the conduct occurred.

Character references

In the case of Bryant and Bench v SRA [2007] EWHC 3043, the SDT refused to consider the solicitors’ character references when deciding whether they had acted dishonestly. We thought that was wrong and we appealed the Tribunal’s decision to the High Court. The High Court agreed with us and the case of Bryant and Bench v SRA is now authority for the fact that the SDT should take account of character references in dishonesty cases.

The character references are relevant to questions of credibility (ie whether a solicitor’s evidence should be believed) and propensity (ie whether the solicitor’s character is such that he or she is likely to act dishonestly).

Every solicitor facing an allegation of dishonesty should obtain character references and should consider whether to call character witnesses. If you are facing an allegation of dishonesty we can advise you on the type of character references to obtain and the content of the references.

The standard of proof

The standard of proof is currently the criminal standard. The SDT must be satisfied so that it is sure that the respondent has acted dishonestly. The standard of proof will change to the civil standard on the introduction of the Tribunal’s new rules, the Solicitors (Disciplinary Proceedings) Rules 2019. The new rules come into effect on 25 November 2019 and will apply to proceedings issued from 25 November 2019 onwards.

The sanction

If the SDT makes a finding of dishonesty against a solicitor, it will make an order that the solicitor be struck off the Roll unless there are exceptional circumstances.

The reasons for striking a solicitor off the Roll for dishonesty are set out in the Court of Appeal decision of Bolton v The Law Society [1994] 1 WLR 512. Sir Thomas Bingham MR said:

‘The most serious [cases] involve proven dishonesty, whether or not leading to criminal proceedings or penalties. In such cases the Tribunal has almost invariably, no matter how strong the mitigation advanced by the solicitor, ordered that he be struck off the Roll of Solicitors…

It is important that there should be full understanding of the reasons why the Tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element… But often the order is not punitive in intention… In most cases the order of the Tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence…

The second purpose is the most fundamental of all: to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission.’

Exceptional circumstances

The courts accept that there is a very small residual category of dishonesty cases where striking off is not appropriate. In SRA v Sharma [2010] EWHC 2022, the High Court identified the following principles:

‘(a) Save in exceptional circumstances, a finding if dishonesty will lead to the solicitor being struck off the Roll, see Bolton and Salsbury. That is the necessary and normal penalty in cases of dishonesty, see Bultitude.

(b) There will be a small residual category where striking off will be a disproportionate sentence in all the circumstances, see Salsbury,

(c) In deciding whether or not a particular case falls into that category, relevant factors will include the nature, scope and extent of the dishonesty itself; whether it was momentary, such as Burrowes or over a lengthy period of time, such as Bultitude whether it was a benefit to the solicitor (Burrowes) and whether it had an adverse effect on others.’

There are very few cases in which the SDT has accepted that there were exceptional circumstances. One was SRA v B 10638-2010, in which we acted for a solicitor who had misled the Legal Complaints Service. We explained that he had told a white lie to protect a colleague who appeared to be suicidal. The SDT made a finding of dishonesty but suspended the solicitor for six months after deciding that the case fell within the small residual category of cases where striking off was not appropriate.

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