Solicitors Disciplinary Tribunal: Defending a Solicitor Against an SRA Referral

How a referral happens

Most SRA referrals to the SDT begin with a complaint, an audit, or a self-report. The SRA's investigation team takes a view. If they conclude there is sufficient evidence of professional misconduct serious enough to warrant tribunal proceedings, they:

1. Write to the solicitor giving notice of what is alleged and inviting a written response within the period stated in the notice, which must be at least 14 days (SRA Regulatory and Disciplinary Procedure Rules, r.2.3)
2. Decide, through an SRA authorised decision maker, to make an application to the SDT (RDPR r.3.1(g))
3. Issue an Application to the SDT under Solicitors (Disciplinary Proceedings) Rules 2019

The Rule 12 Statement is the formal Particulars of Claim equivalent — it sets out each allegation, the rule or principle said to be breached, the conduct relied on, and the supporting evidence.

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The Answer

You receive the Application and Rule 12 Statement. The Tribunal's standard directions set the date by which you must file an Answer (SDPR 2019 r.20(2)(b)). The period is fixed by the directions in your case, not by a set figure in the Rules.

The Answer should:

• Admit or deny each allegation, paragraph by paragraph
• Where denied, give reasons
• Identify any positive case (e.g. supervision failure, mental health, mitigation)
• Indicate broad disclosure being sought
• Identify witnesses likely to be called

A poorly-drafted Answer narrows your options later. A well-drafted Answer:

• Admits what cannot be defended (saving costs and counting in your favour at the sanction stage)
• Denies clearly what is genuinely disputed
• Reserves position where evidence is incomplete

You can ask the Tribunal to extend time — it has a general power to regulate its own procedure and to dispense with the Rules' requirements where it is just to do so (Rule 6) — but extensions are not given lightly. If you genuinely need more time — for example, the SRA disclosure is voluminous and counsel has not been instructed — apply early with reasons.

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The standard of proof

For decades the SDT applied the criminal standard ("beyond reasonable doubt"). That changed with the Solicitors (Disciplinary Proceedings) Rules 2019, rule 5, in force from 25 November 2019. The standard is now the civil standard — balance of probabilities — for all SDT proceedings commenced after that date.

What this means in practice:

• The SRA needs to satisfy the Tribunal that on balance, the misconduct happened
• The standard is the simple balance of probabilities: neither the seriousness of the allegation nor the seriousness of the consequences makes any difference to the standard of proof (Baroness Hale in Re B [2008] UKHL 35 at [70], quoted in S-B (Children) [2009] EWCA Civ 1048)

The shift has not turned the SDT into a soft touch. But it has made marginal cases easier for the SRA to win.

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Allegations commonly made

The SDPR refers to "allegations" rather than charges. Each allegation typically pleads:

• The factual conduct
• The Principle or Code rule said to be breached
• A characterisation (lack of integrity, dishonesty, breach of trust)

The most common allegations:

Multi-allegation Applications are common. A single course of conduct might be pleaded as breaches of multiple Principles plus specific Code rules.

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Dishonesty — the Ivey test

Dishonesty is the most serious finding the SDT can make. A finding of dishonesty against a solicitor leads almost invariably to strike-off; cases departing from this presumption are exceptional ("exceptional circumstances" must be shown).

The legal test changed in 2017. For decades the Twinsectra "two-stage" subjective test applied. Ivey v Genting Casinos [2017] UKSC 67, applied to disciplinary proceedings in Wingate v SRA [2018] EWCA Civ 366, established the modern test:

1. Subjective: what was the actual state of the individual's knowledge or belief as to the facts?
2. Objective: was the conduct, judged by the standards of ordinary honest people, dishonest given that state of mind?

There is no requirement for the individual to have realised that what they were doing was, by ordinary standards, dishonest. If they did it, and ordinary people would call it dishonest given what they knew, that is dishonesty.

This makes dishonesty findings easier to obtain than under the old test, and harder to defend against where the underlying facts are admitted.

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Disclosure and case management

Once the Answer is filed, the case is listed for a Case Management Hearing. The Tribunal makes directions covering:

• Disclosure (mutual disclosure of relevant documents)
• Witness statements (applicant and respondent)
• Expert evidence (rare in pure misconduct cases; more common where forensic accounting is involved)
• Time estimate for the substantive hearing
• Hearing date

Disclosure in SRA cases can be voluminous. Forensic investigation reports and client files can be extensive. Specialist regulatory counsel will narrow the disclosure burden by:

• Identifying the actual issues in dispute
• Limiting requests to what bears on those issues
• Pushing back against fishing-expedition requests

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The substantive hearing

A substantive SDT hearing is conducted in public unless privacy is granted. Hearings are heard by a panel of three: two solicitor members and one lay member. The procedure mirrors a civil trial:

• SRA opens the case
• SRA witnesses give evidence and are cross-examined
• Defence witnesses give evidence and are cross-examined
• The defendant (the respondent solicitor) usually gives evidence
• Closing submissions

The Tribunal then announces its decision and later provides its written Judgment; time for any appeal runs from the date the final written Judgment is formally provided.

If allegations are found proved, the Tribunal moves to sanction. Both parties can make submissions on sanction. The Tribunal applies the SDT Guidance Note on Sanctions which sets out a structured approach to seriousness.

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Sanctions

The SDT can impose any of the following:

• No order — allegations proved but no further action
• Reprimand — formal censure
• Fine — unlimited under section 47(2)(c) Solicitors Act 1974; the SDT structures the amount by reference to its Sanctions Guidance Note
• Restriction of practice — restrictions on practice areas, supervision required, conditions on practising certificate
• Suspension — for a specified period (Solicitors Act 1974 s.47(2)(b)); to practise afterwards you need a practising certificate from the SRA, which may be subject to conditions
• Indefinite suspension — return requires application
• Strike-off — removal from the Roll; return requires an application to the Tribunal for restoration to the Roll (Solicitors Act 1974 s.47(1)(e))

The starting point for proven dishonesty is strike-off. Almost everything else is open to argument.

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Costs

The Tribunal may make such order as to costs as it thinks fit, considering the conduct of the parties, compliance with directions, proportionality and the paying party's means (SDPR 2019 r.43). A solicitor against whom allegations are proved is commonly ordered to pay the SRA's costs. A solicitor who successfully defends the case does not automatically recover costs from the SRA: a regulator that brought proceedings properly is not ordinarily ordered to pay costs simply because it lost (Baxendale-Walker v Law Society [2007] EWCA Civ 233).

A solicitor with no insurance for SDT proceedings can face personal liability for both their own costs and the SRA's costs. Some Solicitors Indemnity Insurance policies exclude regulatory matters; some specialist Directors & Officers / Professional Persons policies include them. Check coverage early.

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Appeal

A respondent or the SRA can appeal a decision of the Tribunal to the High Court, filed in the Administrative Court (Solicitors Act 1974 s.49(1); PD 52D para 27.1(2)). The Appellant's Notice, with grounds, must be filed within 21 days of the date the Tribunal's final written judgment is formally provided to the parties (CPR 52.12(2)(b); SDT Guidance Note, Appeal Time Limit, March 2026).

The Administrative Court applies a deferential standard: it will not interfere with findings of fact unless they were "clearly wrong"; sanctions will not be reduced unless they were outside the range reasonably open to the Tribunal. Successful appeals are rare but not unheard of, particularly where the Tribunal has misapplied legal tests or sanctioned outside the published Guidance.

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Bundle preparation for the SDT

The standard directions set the date by which hearing bundles must be sent to the Tribunal (SDPR 2019 r.20(2)(h)). Unless the Tribunal directs otherwise, where the SRA is the applicant it must send a paginated hearing bundle to the Tribunal no later than 14 days before the substantive hearing (r.27(3)).

A typical SDT bundle contains:

• Section A: Pleadings (Application, Rule 12 Statement, Answer, replies)
• Section B: Witness statements
• Section C: Forensic Investigation Report and supporting documents
• Section D: Client files relied on
• Section E: Accounts records
• Section F: Correspondence between SRA and solicitor
• Section G: Character references and mitigation evidence
• Section H: Authorities

BundleCreator's Regulatory Law template is designed to produce an organised, indexed bundle quickly. Pagination, hyperlinked index, OCR, and bookmarks are produced automatically.

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Frequently asked questions

Can I keep practising while the case is pending?

Usually yes — unless the SRA has imposed an interim condition, suspension, or intervention. Interim restrictions are dealt with separately under the SRA's regulatory powers and are not part of the SDT process. If you have an interim suspension, your practising certificate is restricted while the substantive case proceeds.

Should I represent myself?

For all but the simplest case, no. SDT proceedings are technical, evidence-heavy, and career-defining. Specialist regulatory solicitors and counsel know the Tribunal's habits, the case law on each Principle, and the Tribunal's approach to sanction. The cost of representation is usually a fraction of the cost of an avoidable adverse finding.

Will it be in the press?

Findings of fact and sanction are published on the SDT website. Mainstream legal press (Law Society Gazette, Legal Futures) covers most decisions. National press picks up high-profile cases. Pre-hearing media coverage is uncommon but possible.

What if I admit the allegations?

Where the facts and sanction can be agreed, the parties may submit an Agreed Outcome Proposal to the Tribunal for approval, up to 28 days before the substantive hearing unless the Tribunal directs otherwise (SDPR 2019 r.25). But admitting allegations you do not actually accept is dangerous — the Tribunal will impose sanction on the basis of the admitted misconduct, and the admitted facts can be relied on in any subsequent civil or criminal proceedings.

What about my professional indemnity insurer?

Notify them as soon as you know about the SRA referral, even if you think the allegations are unfounded. Most policies require prompt notification of "circumstances which may give rise to a claim or regulatory action". Late notification can void cover.

What if I am not a solicitor — does this still apply?

The SDT also handles cases against:

• Registered European lawyers and registered foreign lawyers
• Non-solicitor employees and managers of firms regulated by the SRA, including trainees, where the SRA applies for an order controlling their employment (Solicitors Act 1974 s.43; SDPR 2019 r.15)

The procedure broadly tracks the SDPR but has its own variations. Take advice on which route applies.

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Further reading

• Solicitors (Disciplinary Proceedings) Rules 2019
• Solicitors Act 1974 — particularly sections 47-49
• SRA Standards and Regulations — Principles, Codes of Conduct, Accounts Rules
• Solicitors Disciplinary Tribunal — Practice Notes and Sanctions Guidance
• Fitness to Practise: How GMC, NMC, and HCPC Hearings Differ
• FCA Enforcement Notice: Responding to a Decision Notice and Tribunal Reference