Burdett (a solicitor), Re

A regulator responsible for professional standards may impose a condition on a practising certificate to protect the public and the profession while disciplinary matters remain unresolved. Such a condition is protective, not punitive. Outstanding allegations may be considered without deciding guilt or apportioning responsibility. Approval of a new partnership depends on whether effective supervision will operate in practice. Relevant considerations include the proposed supervisors’ professional experience, their relationship with the solicitor, and the history and circumstances of the practice. Conditions should be directed to the certificate holder and be capable of effective policing.

Mr Burdett brought two appeals against Law Society decisions. The first imposed a condition that he practise only in approved employment or partnership, following investigations into financial and accounting irregularities and pending disciplinary proceedings. The second refused approval of a new partnership between Mr Burdett and two former employees. The refusal was based on concerns that the proposed partners, although possessing business experience, lacked sufficient professional experience to supervise him effectively. The central issues were whether the practising-certificate condition was justified before the disciplinary proceedings were determined and whether the proposed partnership provided adequate supervision.

Lord Phillips MR dismissed both appeals.

1. Protective condition. A condition on a practising certificate is not a disciplinary sanction. The Law Society was entitled to consider outstanding charges and the surrounding evidence without prejudging the proceedings before the Solicitors’ Disciplinary Tribunal. It was neither necessary nor appropriate at that stage to apportion blame between the partners. The relevant question was whether action was needed to protect the public or the reputation of the profession. Otherwise, the more serious the allegation, the less ability the regulator would have to take interim protective measures.
2. Supervision and partnership approval. The Law Society was entitled to assess whether supervision would be effective in practice. The proposed partners’ general business-management experience did not overcome their limited professional experience, their status as former employees of the firm, and the unsatisfactory history of the existing practice. It was entitled to conclude that two solicitors recently appointed as partners from that firm could not adequately supervise the more senior solicitor.
3. Nature of conditions. The proposed alternative conditions were inappropriate and illusory because they imposed obligations principally on the putative partners rather than on the certificate holder and were not capable of effective policing.

Costs were fixed at £1,060 inclusive. Existing arrangements were extended until 15 September 2002 solely to enable the partnership to be brought to an end, and Mr Burdett was not to take on new business.

• Law Society — imposed a practising-certificate condition requiring practice only in approved employment or partnership. Its Panel upheld the decision and later refused approval of the proposed partnership with Mr Brunning and Mr Thompson.
• Court of Appeal (Civil Division) — dismissed both appeals and made the consequential costs and temporary-extension orders.