An interesting paper by Andy Boon and Avis Whyte has been published (paywalled I suspect) on SDT cases. the authors have painstakingly assembled data to be compared across three periods: 1994 to 1996 (collected by Davies), 2008 (with Boon, Whyte and Sherr) and 2015.
They point to a strange failure of SDT case volumes to increase given the increases in the size of the profession over that period and the shift towards more independent regulation. They are not much impressed with the explanation that it could be explained by the SRA dealing with more as alternative disposals (small fines, for instance). I agree. I’d be inclined also to point to independent regulation being geared to tackling problems with service rather than ethics with neither the legal ombudsman nor its predecessors ever being well versed in identifying misconduct problems: they didn’t see it as their job then and they probably don’t see it as their job now. Reports direct to the SRA are likely to be a or the main route in for conduct cases, which raises an interesting question about how appropriately open or closed that gateway is.
The paper was particularly interesting given the current debate about whether the SDT treats certain people more harshly than others. Boon and Whyte found no significant correlation between status and sanction: so partners were no more likely to be struck off than associates. We can’t really treat the cases these two groups would face as the same though, so its hard to interpret. They also intriguingly found some support” for the idea that, “the SDT sometimes avoided making dishonesty findings.” The implication seems to be that the almost automatic strike offer such offences might be, or might have been, inhibiting decision-making. This predates the shift away from the criminal standard of proof and a settling in the law on dishonesty and integrity. It raises two questions for me: has the approach changed, and should there be more softening on sanctions for dishonesty?
On the feeling that the SRA may be targeting young lawyers, there is further relevant data. The age of respondents before the SDT in the 20 to 29 age group, went from being just over 2% to nearly 6% between 1994/6 and 2015 (but still under represented compared to their numbers in the profession as a whole). It is those in middle age who, it seems, are most likely to appear to before the SDT (65% are between 40-59). Interestingly too, and contrary to the point on sanctions, partners are under-represented, whereas associates and others have increased from 8 to 27%.
Women continue to represent a mere 20% of those appearing before the SDT. The authors suggest this may reflect the fact that women in the profession tend to be more represented in younger age groups, and may be less likely to have the opportunity for misconduct as a result. They also think, very interestingly, that there may be some ‘chivalry bias’ (their phrase) on the part of the tribunal or prosecutors. I’d suggest in addition the possibility that women are more ethically inclined than male lawyers. There is quite strong evidence that this is so for law students, for instance.
A final point of note is that they find that most of those who appear before the tribunal, beyond those who have been struck off, seem to leave the profession. The data seems to be quite difficult to assemble on this, and they worry where it is that these disappeared former solicitors go, pointing up a regulatory hole that is, as yet, unplugged. There is little that can be done if such individuals set up un regulated legal service businesses.