There is a procedure in the Solicitors Disciplinary Tribunal which allows the parties to apply for disciplinary proceedings to be concluded by a Statement of Agreed Facts and Outcome. Whilst it is entirely for the Tribunal to determine whether it approves the outcome presented to it by the parties, it can be an extremely useful process for removing uncertainty and controlling costs. There has for some time existed a procedure for presenting the Tribunal with a Statement of Agreed Facts and leaving it to the tribunal to determine the outcome by reference to its guidelines.
It can be taken a stage further with the parties additionally asking the Tribunal to approve an outcome that has been agreed between them. The Tribunal retains the jurisdiction to do so, or to reject it. It alone determines whether the outcome presented for approval is in proportion to the agreed facts.
The most recent example of this procedure is contained in the relatively recent decision of the tribunal dated 4 August 2017 in a prosecution brought by the SRA against David Goldberg and White and Case LLP. The SRA instituted proceedings against both respondents which essentially involved acting in circumstances where there existed a conflict of interest between clients or a significant risk of such conflict, and accepting instructions from clients where inadequate steps had been taken to ensure confidentiality of information.
The SRA’s application came before the Tribunal on 18 July in the absence of the parties who had presented a Statement of Agreed facts and Outcome. The Tribunal will proceed in this way without the parties incurring the costs of being present unless there are issues with what the Members are being asked to approve. The individual solicitor submitted to a fine of £50,000 and a contribution towards the SRA’s costs, and the firm submitted to a fine of £250,000, again with a contribution towards the SRA’s costs.
This was the outcome the Tribunal approved. Two substantial fines were proportionate as there was no allegation that either respondent had acted dishonestly, and the SRA did not pursue allegations of lack of integrity. The factual background was complicated only because of the complex nature of White and Case’s international cross border business, not the professional conduct principles involved which were straightforward. White and Case accepted where they fell down, and set out what they had done to avoid repetition.
Most Respondents do the same when they appear, and the Tribunal is always keen to know what lessons have been learned.
What makes the judgement noteworthy is the high level of fine agreed by White and Case. It is the highest yet agreed and presented to the Tribunal and it is very likely it will feature in future conduct prosecutions where respondents seek to agree a financial outcome such as this.
I can very easily see it becoming a judgement that the SRA will use in such negotiations, but of course not many practices carry out their business on the size and scale of White and Case. The vast majority of practices in England and Wales have nothing like their turnover, client base or international structure, but nonetheless it is likely to be something of a benchmark from now on.
If nothing else it shows how serious missing a conflict of interest can be.