Reeves v SRA – Lifting of indefinite suspensions before the SDT

In this recent case, in which I acted for the applicant, the SDT lifted an indefinite suspension after over 12 years, despite opposition from the SRA. The SDT’s judgment is an important example of the practical application of the Tribunal’s guidance in such cases.

Mr Reeves was admitted to the Roll in 1986, and had no fitness to practice history. However in 2005 he became a sole practitioner, and by 2009 had run into substantial administrative problems. Tribunal proceedings were brought by the SRA, largely deriving from the Applicant’s failure to deliver accountant’s reports for his sole practice between September 2006 and September 2009 (four sets of accounts). The Applicant was experiencing financial difficulties and had substantial personal problems including a young son with significant health problems.  He admitted the allegations  and was subject to financial orders, but also an order to submit the relevant accountant’s reports by January 2012, failing which an indefinite suspension would come into force.

Unfortunately the Applicant’s financial and personal difficulties continued and he was not able to complete and return the relevant records. He was therefore indefinitely suspended.

Since his suspension, the Applicant had worked in a bank instructing solicitors on behalf of the bank in litigation similar to that which he had been conducting when a practicing solicitor, but had not sought permission from the SRA to work for a regulated entity nor done so. He had resolved the problems which had led to his suspension.

The central issue for the Tribunal in an application to lift a suspension is whether to do so would be contrary to the interest of the public or adversely affect the reputation of the legal profession. The Tribunal Guidance sets out factors to have regard to in an application for termination of an indefinite suspension, which are for guidance only and are not intended as an exhaustive list:

1. Details of the original order of the Tribunal leading to suspension. The Tribunal should consider this information for guidance as to the seriousness and circumstances of the original breach or misconduct, and the steps the Tribunal regards as being relevant in supporting an application.
2. If the suspension was imposed due to concerns regarding the applicant’s fitness to practise due to physical or mental ill-health or addiction, evidence of rehabilitation and future prognosis must be provided from a suitably qualified expert.
3. Evidence must be provided to establish any training undertaken by the applicant or that they have kept their legal knowledge up to date in their area of practice.
4. Evidence of any employment, together with safeguards and supervision which have been put in place by the applicant’s employer, or alternatively a stringent oversight of the applicant’s potential employment together with third party risk and personal management arrangements to be put in place by a prospective employer.
5. Evidence of genuine reformation of character of the applicant, including evidence of insight into the nature and effects of the misconduct, and steps taken by the applicant to ensure that the wrongdoing does not reoccur.
6. The length of time since the suspension was imposed.
7. Whether the Tribunal which made the original order, having paid due regard to its inability to fetter the discretion of any future Tribunal considering an application for the termination of the suspension, indicated that it had in mind the possibility of an eventual termination of the indefinite suspension.
8. Whether there is any continuing risk to the public.
9. Whether the Tribunal considers that the public would not harbour concerns about the propriety of the applicant returning to practice.
10. If the suspension was subject to conditions, evidence that they have been complied with.
11. If financial penalties were imposed, evidence that they have been discharged or attempts made by the applicant to discharge them.
12. Character references.
13. The Regulator’s response to the application.
14. Responses received by the Tribunal from others under Rule 17 (7) of the Solicitors (Disciplinary Proceedings) Rules 2019 following the applicant’s advertisement of their application as required by Rule 17 (6) of those Rules.

There was limited dispute between the parties that the Applicant had insight and remorse in respect of the original failings, and had corrected the problems that led to them. The Tribunal was satisfied that “the ship had been righted”. The central dispute related to (iv), in that the SRA suggested that given the Applicant had not sought permission to work in a regulated entity (as he would have to as a suspended solicitor), and not obtained prospective employment, the Tribunal could not be satisfied that appropriate safeguards and supervision would be in place if he returned to practice.

On behalf of the Applicant, it was argued that the factors in the Guidance were just that, and not criteria which must all be fulfilled in every case. The Applicant had continued to work in a similar field and in daily contact with solicitors, had done relevant training, and provided positive references from solicitors he had worked with both before and after his suspension. The Applicant pointed to the Tribunal’s power to impose conditions when lifting a suspension. It was suggested the SRA’s position placed an applicant in a ‘Catch 22’ situation, where he could not realistically apply to a role that required a practicing certificate before the suspension was lifted, but until he did so could not point to the specific supervision and safeguards that would be in place.

It is evident from the Tribunal’s reasoning that it considered those arguments to be relatively finely balanced, but was ultimately persuaded to lift the suspension with conditions that were similar to those proposed by the Applicant. Its key reasoning was as follows:

81. The difficulty with this application, as the Tribunal saw it, was that the Applicant had not worked in the legal profession for many years, but he could have done so, had he applied for and been granted permission to do so by the SRA. There was no evidence therefore of safeguards being in place, or the effectiveness of supervision, both of which are necessary considerations in determining whether the Applicant could return to practise. Further, the Applicant did not have an offer of employment in the profession and so there was no evidence before the Tribunal about what arrangements would be put in place by a prospective employer to ensure that any risk to the public was monitored and managed. The Applicant merely stated that he intended to seek roles as a Consultant to a law firm. However, this was a role which would ordinarily attract the lowest level of supervision and monitoring. It therefore carried the highest degree of risk.
82. The Tribunal was reassured by the Applicant’s acknowledgment that his return to legal practice would need to be carefully managed, and that he was not proposing to practise on his own again, or in a completely new area of law, but in a field which was closely related the commercial sphere of activity he had been involved with at the bank for the last 13 years. The Tribunal noted the training the Applicant had undertaken in anti-money laundering regulations, financial compliance and anti-corruption. He had 24 years prior experience as a solicitor, and during his time at the bank he had worked closely with its external solicitors. He had prepared instructions to legal professionals, and so in that way had kept in touch with the legal world.
83. The Tribunal accepted that the Applicant had insight into, and remorse for, his misconduct.
84. When weighing up the various factors in this case the Tribunal felt that the decision of whether to terminate the suspension was finely balanced. Given the areas where there were legitimate questions raised by the Respondent, including as to whether the Applicant had produced evidence to show that, having worked in a supervised role in a legal practice, he no longer presented a risk to the public or the profession’s reputation, and so his suspension could safely be lifted, there was a proper basis for the Tribunal dismissing the application to lift the suspension.
85. However, there were matters raised on the Applicant’s behalf which went some way to assuaging the Tribunal’s hesitancy, such as he now had a stable personal life; he has proper control of his financial situation; he does not seek to move into an area of law outside his skill set; he accepts that conditions could appropriately be placed on his practice that would manage the continuing risk.”

The Tribunal therefore lifted the suspension and imposed conditions relating to the Applicant acting as in certain roles, holding client money, and notification and training conditions.

This decision does not represent a change in the law, but reported decisions on contested applications to lift a suspension are rare, so it does present a very useful example of the practical application of the Tribunal’s guidance. Evidently, a prospective Applicant who obtains permission from the SRA and works for a regulated entity in a role that does not require a practicing certificate, but secures a position that does with safeguards and supervision in place will put themselves in the best possible position before the Tribunal. That will require extensive support from a sympathetic Firm who may have little business incentive to offer it.  Mr Reeves’ case does demonstrate however that it is possible to put in place sufficient safeguards without that advantage. Applicants will need to carefully consider whether to propose conditions as part of an application; an approach which ultimately found favour in this case.

Lewis MacDonald