Lawyers Behaving Badly, BBC Scotland’s investigation into the disciplining of Scottish solicitors undoubtedly caused a stir when it was transmitted last week, but not entirely for the right reasons. Arguments about the quality and standards of journalism have tended to deflect attention away from the underlying question of whether there is a fundamental problem with the Scottish lawyer discipline system, and, in particular, whether a move to English-style ‘independent’ regulation would make a difference.
A key argument of the programme seemed to be that a move to English-style regulation is required. Although the programme raised some interesting issues regarding regulatory co-ordination between the Scottish Legal Aid Board and the Law Society of Scotland, the evidence presented in support of that claim was rather diffuse: one case of a solicitor who had been struck off for incompetence providing unregulated legal advice, but in circumstances where there did not appear to be clear evidence that he was holding himself out as a solicitor, nor that he was routinely charging for legal advice, and two cases of what seemed to be dishonesty where the solicitors were not struck off. Would English-style regulation have made a difference in any of these cases? Short answer: not necessarily.
The first problem, of unregulated legal advice, could equally arise in England and Wales. The risk that disqualified lawyers can – so long as they don’t hold themselves out as solicitors – ‘practice’ outside the regulated sphere still exists in England and Wales, and since the alternative is to impose broad sanctions for unauthorised practice of law which create a (US-style) virtual monopoly market for regulated lawyers, I wouldn’t bank on any government in the UK agreeing to such regulations anytime soon.
Regarding the disciplinary cases, both the Scottish Solicitors Discipline Tribunal (SSDT) and the English Solicitors Disciplinary Tribunal (SDT) are statutory bodies that operate independently of the Law Society of Scotland and the SRA respectively. The English reforms have not changed the basic form and function of the SDT. So a change to independent regulation would not necessarily make a difference here either.
The unanimous opinion of the independent experts interviewed by the BBC (of whom I was one) was simply that the SSDT had taken a surprisingly lenient approach to matters of dishonesty in both of the cases used in the documentary – it was case specific. Although as English lawyers it’s fair to say we were all more familiar with the SDTs custom and practice, that judgment was made relative to the jurisprudence governing both the SDT and the SSDT. It is well established following Bolton v Law Society  1 WLR 512 that dishonesty normally merits striking off unless there are highly exceptional circumstances. As Sir Thomas Bingham M.R. said (my italics):
Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation.
It is my understanding that equivalent principles operate in Scotland: see, eg, Robson v Council of the Law Society of Scotland  CSIH 89; Re Petition of McMahon & Ors  ScotCS 36; in both of these cases Bolton was cited with approval by the Scottish courts.
Disciplinary tribunals, however, are not courts of law, and their decisions in most jurisdictions are not precedents as such, though there is of course an expectation that tribunals should strive for consistency in their own decision-making. The critical question therefore would be whether the SSDTs decisions in Murray and O’Donnell – the two cases the BBC ultimately focused on, were outliers, or whether they reflect a culture of relative leniency towards dishonesty within the SSDT. This is not an entirely straightforward question to answer but one that has interested me enough in the wake of the programme to undertake some further research which I’ll discuss in the next post.