This Post is co-authored with Steven Vaughan and was originally published on 2 April 2015 as a guest blog on Richard Moorhead’s Lawyer Watch. Thanks to Steven and Richard for their agreement to my re-posting it here, and HT to Richard for the snazzy title. Steven begins…
I am doing some work on the concept of lawyer independence. I’d read the LSA, and the relevant SRA principles and guidance, and searched the SRA website to see where Principle 3 was mentioned. Principle 3 says that a solicitor must, “not allow [his/her] independence to be compromised.”
I’d then gone to look for case law, found an interesting case from the High Court on referral fees (Reed v George Marriott  EWHC 1183 (Admin)) and had the Farooqi case helpfully pointed out to me by Richard Moorhead. He blogged on it here.
I then went to go search rulings by the Solicitors Disciplinary Tribunal. I’d done this for two reasons. First, the vast majority of cases involving alleged, or actual, solicitor misconduct never get appealed (and so aren’t reported in the higher courts). Second, I had seen in the SRA’s recent report on litigator’s duties a reference to a 2004 SDT ruling which mentioned independence (In the matter of Paul Francis Simms, Solicitors Disciplinary Tribunal, 2 Feburary 2004) and wondered if any other rulings had similar dicta.
The SDT website (http://www.solicitorstribunal.org.uk) allows you to search judgements, or you can browse them all in one long list. If you want to search, you can do this by: (i) Case Reference; (ii) Full Name; (iii) Allegation Type (‘Breaches’; ‘Delays’; ‘Account Rules’ etc); (iv) Outcome (‘Fines’; ‘Strike Off’ etc); or (v) Date. What you cannot do is search by keyword. So, I cannot find all the judgements that consider, say, Principle 3, or the term “duty to the court”.
I emailed the SDT to ask for their help. I won’t put their reply below, as I hadn’t said I was going to publish it, but, in effect, they said this was a resources issue. I can see that. In part.
I posted my incredulity about this onto Twitter. Julian Webb was the first to respond. I’ll let him take over here…
…I can’t say I was surprised by Steven’s experience. It echoed my own from a couple of years ago when I started wondering about the uses the SDT has made of professional disrepute in its decisions, and the range of penalties imposed – a topic which, in the absence of more substantial (ie funded) research assistance, I decided to park in the too difficult box, largely because of the limits of search functionality on the website.
To be sure, what we have now is a quantum advance from the days when SDT decisions were only available on request, and, of course, the SDT is not alone. The Register of Disciplinary Action (RODA) in my new home of Victoria is similarly geared to the simplest of category-driven consumer searches. But it is hard to see why text-based and Boolean search functionality, like keyword searching, should be an issue; indeed the Scottish SSDT website already provides it.
Does it matter? It may be objected that this is a real minority concern (I did joke to Steven that we might be the only two people on the planet to consider this a significant problem; I was wrong; in the end there was six of us in the conversation…) and that the SDT is not there to facilitate research. But the issue actually deserves a better response than that, because there is a more fundamental point to be made about the relationship between accessibility of decisions (and in the digital age that must surely imply a certain threshold of functionality), public trust, accountability and education. Indeed, the Tribunal’s own publications policy makes the point for us:
Publishing Judgments is important in ensuring that the Tribunal’s processes are transparent. The content of Judgments assists in Informing and educating users of legal services and the profession. Publication enables the Tribunal’s stakeholders to be reassured that the Tribunal’s decision-making powers are being exercised proportionately and consistently, and that the Tribunal is accountable for its decisions.
These are sentiments with which we concur, but does the SDT really believe its site has the functionality to enable anyone to make assessments of ‘proportionality and consistency’ at anything but a very basic level of comparison? In the context of increasing concerns about the accountability of professionals, and the historic evidence from a number of jurisdictions of under-enforcement of disciplinary breaches, the point should not be considered purely academic. Now back to Steven for our conclusion….
…In its 2013/2014 Annual Report, the SDT notes a 2013 running cost of £2.1m. Just under £900,000 of this is spent on employment costs. The Legal Services Act 2007 requires that the full cost of funding the SDT comes from a levy on the profession via the annual practising certificate fee. The SDT’s 2013/2014 Annual Report sets out that the proportion of total practising fee income paid to the SDT was 2% in 2013-2014. In 2013, only £9,600 was spent by the SDT on its website. That’s 0.005% of the SDT’s overal running cost. Wouldn’t it be better to spend say, a little less money on employment costs (or AGMs or Training Days or SDT Members’ fees) and a little more on making the website fit for purpose and allowing the law on solicitors’ discipline and punishment to be better known, and more open to proper evaluation?