Lebow, Re a Solicitor No 13 of 2007

Conditions may be imposed on a solicitor’s practising certificate only where they are necessary and proportionate to protect the public and the reputation of the profession. This is a forward-looking regulatory measure, rather than a disciplinary penalty.

A solicitor remains responsible for ensuring that required accountant’s reports are filed on time, even where an accountant is substantially at fault. A paper-based regulatory procedure is compatible with article 6 when the process as a whole includes a public oral rehearing before the Master of the Rolls.

A Law Society adjudicator imposed conditions preventing the appellant solicitor from practising as a sole principal or with only inexperienced co-principals unless the arrangements were approved by the Solicitors Regulation Authority. The decision followed repeated failures to file accountant’s reports and was upheld by the Law Society’s appeal panel.

The solicitor appealed by petition under section 13(2)(b) of the Solicitors Act 1974. She challenged the necessity and proportionality of the conditions and contended that the absence of an oral hearing within the Law Society’s internal process infringed article 6 of the European Convention on Human Rights.

1. Appeal dismissed. The appeal was a rehearing, although appropriate weight was due to the adjudicator’s and appeal panel’s judgments. Conditions on a practising certificate constitute regulatory control directed to protecting the public and the profession’s reputation. Any conditions imposed must be necessary and proportionate.

2. The failure to request an oral hearing was fatal to the common-law complaint. Applying Thompson v Law Society [2004] EWCA Civ 167, fairness depends upon the circumstances. An experienced solicitor who found written presentation difficult could reasonably have enquired whether an oral hearing was available.

3. The absence of an oral hearing before the adjudicator or appeal panel did not infringe article 6. The appeal under section 13(2)(b) of the Solicitors Act 1974 was an oral rehearing and formed part of the regulatory process. Viewed as a whole, the procedure for imposing practising-certificate conditions was therefore compatible with article 6. Any failure to make the governing appeal regulations readily available caused no prejudice because the solicitor obtained them and filed a timely, coherent petition.

4. The duty to ensure that accountant’s reports were filed remained the solicitor’s responsibility, even if an accountant was substantially at fault. Personal difficulties and an accountant’s failures could mitigate disciplinary proceedings, but they did not answer the distinct regulatory need to protect the public and the profession. Timely accountant’s reports are an essential means of supervising client accounts and compliance with the Solicitors Accounts Rules.

5. The history of repeated non-compliance established a sufficient future risk if the solicitor resumed practice as a sole principal. The conditions were necessary because they secured appropriate practice support if her circumstances changed. They were proportionate because they operated only if she changed from her current manner of practice. Their imposition was therefore a proper exercise of regulatory control.

1. Court of Appeal (Civil Division): The appeal under section 13(2)(b) of the Solicitors Act 1974 was dismissed. The conditions on the practising certificate remained in force.

2. Law Society appeal panel: On 31 July 2007 the panel dismissed the internal appeal, holding that the outstanding accountant’s reports justified restrictions on practice as a sole principal or with inexperienced co-principals.

3. Law Society adjudicator: On 29 May 2007 the adjudicator imposed the conditions because earlier reporting conditions had proved ineffective and stronger protection was required for the public and the profession.