Solicitors and Dishonesty - a New Test. 

Over the last 20 years or so I have prosecuted and defended dozens of dishonesty cases before the Solicitors Dishonesty Tribunal, and over that time it has become an increasingly challenging concept to navigate.

Notwithstanding these are civil proceedings, hearings focusing on dishonesty very frequently seem like criminal trials. This is not just because the SDT has to be satisfied to the criminal standard, but because evidence has to look very closely at exactly what the solicitor did, when, and what his or her state of mind was. 

SDT is a primary fact-finding tribunal and applies those findings to the dishonesty test which has hitherto been a combination of the objective and subjective elements set out in Twinsectra v Yardley [2002] UKHL 12. It required the Tribunal to firstly decide whether, according to the ordinary standards of reasonable and honest people, what was done was dishonest. If it was not dishonest by those standards, that was the end of the matter and the prosecution failed. If it was dishonest by those standards, the Tribunal had to go on to consider whether the Respondent must have realised that what he was doing was by those standards dishonest.

New Dishonesty Test

On 25 October 2017 the Supreme Court handed down its judgment in Ivey v Genting Casinos [2017] UKSC 67, and although the facts of the case are entirely different from those involving solicitors and indeed any professional, it will impact on the way the Tribunal determines allegations of dishonesty.

Some things, however, will not change. When the SRA alleges dishonesty it must still prove the underlying facts to a criminal standard. It must do this properly by admissible evidence. It must still prove the actual state of the solicitors’ mind when the acts alleged were carried out. It is in very many respects a criminal trial.

What the Tribunal must do as a fact finder is ascertain the actual state of the solicitors’ knowledge or belief about the facts presented by the SRA. Once that has been done, the question whether his conduct was honest or dishonest is to be determined by the Tribunal by applying the standards of ordinary decent people.

In summary, the Tribunal will look at all the facts and circumstances, and the solicitor’s state of mind and decide whether the SRA has proved dishonesty to the relevant standard or not.

Presenting and defending dishonesty prosecutions will remain complicated. Solicitors sometimes get into difficulty because they do not address the investigation stage properly, whether in interview or in written explanations.

This can have a huge part to play when the facts are examined before the Tribunal. The Tribunal will look very closely at explanations for inaccuracies and inconsistencies and so they need preparing with real care. They can often be determinative. 

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