Solicitors
A solicitor is liable to be disciplined for any breach of the law, Professional Rules of Conduct or Solicitors’ Account Rules. The Professional Rules are set out in the Guide to the Conduct of Solicitors and are frequently being updated on the Law Society’s website. The Law Society is in the course of bringing in a new Code of Conduct which will replace the current Guide to the Professional Conduct of Solicitors, which is currently being reviewed by the Government and is expected to come into force very soon.
Inadequate Professional Service
In addition, Solicitors can be disciplined for providing inadequate professional service. The Consumer Complaints Service may consider imposing sanctions if the way in which the advice was delivered, or the manner in which complaints were handled, falls short of the required standard.
Penalties
A client may be awarded compensation from the Law Society’s Compensation Fund; alternatively, a solicitor may be ordered to pay a client of up to £15,000 as compensation for Inadequate Professional Service.
Other sanctions that can be imposed by an Adjudicator include refusing, or imposing conditions on a practising certificate; ordering a solicitor to reduce his bill or remit fees or ordering a solicitor to pay the client interest on money.
Serious breaches of the Regulations can lead to more significant penalties, including fines, suspensions and the Solicitor being stuck off. In the most serious cases, an intervention into the Solicitor's practice can be ordered.
How does an investigation start?
Often a notice is sent to the Partners of the firm indicating that there will be an inspection of the firm's books and records. This can extend to client files.
Any inspection by the Law Society should be taken seriously and all too often, Solicitors show their ignorance of the Rules in the course of the investigation itself.
The investigation
The investigation will often focus upon the Solicitors' accounts. The Partners and the staff, particularly the accounts staff, may be questioned. The responses to the questions will all be noted and views expressed on a casual or informal basis may come back to haunt.
The inspection will sometimes result in a Forensic Investigation Report. This will be prepared for a Caseworker in the Consumer Complaints Service who will send it to the Partners with a letter asking for an explanation for the breaches of the Rules that have been identified.
The Adjudication
The response that is made will be incorporated into the Caseworker's report. After the Solicitor has had the opportunity to comment upon the report, it will be placed before the Adjudication Panel. The report will contain recommendations but the Adjudicator will not be bound to follow these.
The Adjudicator's powers in respect of regulatory matters is limited to finding no case to answer, taking no further action, issuing a reprimand, rebuking the solicitor or referral to the Tribunal. Thus, if a fine or any more serious penalty is thought to be appropriate, the matter must be sent to the Tribunal.
The Tribunal
The Solicitor’s Disciplinary Tribunal sits in London and will consider all the evidence to make a finding and will issue the penalties.
It is possible to seek a review of the Adjudicator's decision or to appeal the Tribunal finding. However, the time limits are strict and provision should be made for funding.
Intervention
Sometimes, a notice is served on a firm of Solicitors indicating that intervention may be considered.
It is now clear from recent cases that intervention is a draconian measure aimed at closing down the Solicitors' firm concerned. All interventions are now full interventions from the outset. Due to Professional Indemnity Insurance arrangements, it is highly unlikely that Solicitors will take on an intervened firm because of the liabilities that are now attached.
A decision on intervention is made by the Law Society through a Panel and the notice is issued. As soon as intervention takes place, the Solicitors' practice is closed down and all accounts are frozen.
It is possible to appeal an intervention but there is a strict 8-day time limit. An appeal will need to be funded and so, if you believe that there is a danger that an intervention order will be made, you should set money aside to deal with the costs of the appeal.
Do not bury your head in the sand. Disciplinary proceedings will still follow even where there has been an intervention.
Conditions
This includes where there has been a breach of the Rules and the Solicitor has failed to offer a satisfactory explanation.
In those circumstances, the Consumer Complaints Service has discretion to impose conditions on the Solicitor's Certificate or to refuse to issue a Certificate.
An Adjudicator makes this decision and the Solicitor may make representations to the Adjudicator as to whether conditions are necessary and if so which conditions would be appropriate.
Sometimes conditions are suggested which are so onerous they would, in effect, close the Solicitor's practice and serve to be an intervention through another means. We can help you challenge the recommendations for conditions which are unfair or excessive.