Agreed Facts and Outcome - A New Benchmark?

Statement of facts and outcomeThere 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.


No comments so far - why not be the first?

(HTML markup not supported)
Solicitors public vs personal life. Ryan Beckwith v SRA 2020] EWHC 3231 (Admin), The SRA has said it will not appeal,
The SRA has at last issued a brief statement on this very significant issue. I suspect the virus has massively impacted on the Authority and I know many employees are working from home. It is not business as usual and of course, it is not
The article below was printed in the Law Society Gazette and prompted quite a discussion! In September 2018 I described how the SRA were dealing with solicitors convicted of drink driving, and the need for a more discerning and informed
A much simpler set of Accounts Rules will come into force in November 2019, and will for the first time give firms, managers and sole practitioners considerable flexibility on how they go about complying and dealing with client money.
The Leigh Day appeal reaffirmed some basic principles for appeals of SRA judgements
The Solicitors Disciplinary Tribunal regularly deals with applications brought by the SRA following the conclusion of criminal proceedings against solicitors. The conviction sometimes forms the entire basis of the proceedings, but otherwise
In late 2013 Aidan Loy committed three drink driving offences for which he was sentenced in December 2013 and February 2014. The second two offences were dealt with together, and as they were all committed in a very short period of time with
The recently published judgment in Forz Khan v Bar Standards Board provides insight into the professional consequences of careless talk and use of LinkedIn. It comes hot on the heels of an SDT judgment in Deborah Daniels who was prosecuted by
LawCare released striking statistics at the beginning of 2018 which show the number of lawyers calling for help is increasing. Lawyers' mental and emotional health has been slowly creeping up the agenda and even the SRA is recognising
The Solicitors Disciplinary Tribunal is now consulting on whether to reduce the standard of proof in disciplinary cases from a criminal to a civil one.
Solicitors have been warned to watch their language and it is highly likely that other regulators will adopt a similar approach.
Solicitors and firms are required to report to the SRA promptly, serious misconduct but what constitutes serious misconduct
The SRA and other regulators frequently bring disciplinary proceedings based on "a lack of integrity." But what is integrity?
In September 2017 Majid Mahmood was fined £25,000 and was the subject of a deferred period of suspension as a result of wholly inappropriate posts on his Facebook Page
On the 21 September 2017 the SRA published a warning notice to solicitors, firms and anyone else it regulates who provide tax planning services
Michael Cremin was a man who presented himself to the outside world as a Lawyer and Advocate. He had a professional profile on the web site of Cotswold Barristers Chambers, along with his photograph. Cremin was neither.
This has long been a guiding principle. Solicitors are guardians and trustees of client money and are expected to exercise proper stewardship over it. Everything that we do with client money has to in accordance with the SRA Accounts Rules
The Solicitors Disciplinary Tribunal has confirmed that it will consult on where to set the standard of proof when determining allegations of misconduct against solicitors. The Bar Standards Board is also looking at a new civil standard of
In proceedings before the Solicitors Disciplinary Tribunal it has for very many years been a requirement that a solicitor should clearly know the case that he or she has to meet. In other words, there is an obligation on the SRA to properly
The need to deal carefully, thoroughly and openly with the SRA during investigations cannot be overstated. There is an explicit professional obligation to cooperate with the Authority and to provide it with whatever information it might need
Web site powered by CommsBox™