A solicitor was reported to the Solicitors Regulation Authority after certifying that they had witnessed the execution of a document when the signatory was not physically present. I was instructed by the solicitor under investigation.

On its face, the concern was serious. A solicitor’s certification is intended to be reliable. Other people may act upon it without making their own enquiries, precisely because it has been given by a regulated professional.

The SRA nevertheless considered the report from the employer and decided not to investigate.

The outcome provides a useful illustration of an important, but sometimes misunderstood, part of the regulatory system: the Assessment Threshold Test. It also demonstrates why two cases involving superficially similar conduct can follow radically different paths. One may be closed at the assessment stage; another may result in proceedings before the Solicitors Disciplinary Tribunal.

The decisions are not necessarily inconsistent. The answer is usually found in the evidence about the solicitor’s knowledge, intention and response, together with the seriousness of the conduct and the regulatory risk.

The SRA does not investigate every possible breach

When the SRA receives a complaint or report, it applies a three-stage Assessment Threshold Test. They ask:

1. Has there been a potential breach of the SRA’s standards or requirements based on the allegations made?
2. Is the breach sufficiently serious that, if proved, it is capable of resulting in regulatory action?
3. Is that breach capable of proof?

All three questions must be answered “yes” before a matter passes the test. At the first stage, the SRA does not require proof of a breach. It considers whether the information raises a question of wrongdoing. If the available information is insufficient to determine whether part of the test is met, the SRA may obtain further information before deciding whether to proceed.

The second stage involves an assessment of seriousness. The SRA’s published guidance expressly states that its Enforcement Strategy supports the Assessment Threshold Test and guides the regulator when deciding at stage two whether a potential breach is sufficiently serious to justify action.

This is where proportionality becomes rather important. The SRA says that it adopts a risk-based approach, focusing on misconduct most likely to harm the public interest and balancing the public interest against the interests of the individual or firm whose conduct has been questioned.

This approach reflects section 28(3)(a) of the Legal Services Act 2007, which requires an approved regulator to have regard to the principles under which regulatory activities should be:

“transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed”.

The final words are highly relevant. Regulation should not merely be targeted. It should be targeted at cases in which regulatory action is actually needed. The Assessment Threshold Test is therefore more than an evidential gateway. At stage two, the SRA must exercise judgment about seriousness, risk and the proportionate use of its regulatory powers, as well as its resources.

Why investigations are sometimes not opened

Certifying a document as having been signed in the solicitor’s presence, when this has not occurred, is potentially serious. The SRA will consider whether the conduct potentially engages Principle 2, the obligation to act in a way that upholds public trust and confidence in the solicitors’ profession and legal services, and Principle 5, the obligation to act with integrity.

The SRA do not minimise the importance of accurate professional certification. However, it may conclude in some cases that the available information does not indicate dishonesty, deliberate misconduct or an intention to mislead. The evidence may instead suggest an error of judgment arising from a misunderstanding of the applicable witnessing requirements.

Several further considerations can inform the decision. For example:

• Was the incident isolated?
• Was the conduct deliberate, reckless or accidental?
• Any evidence of a pattern of similar conduct?
• Was there a loss to the client or financial gain to the solicitor?
• Was the solicitor open when the matter was discussed?
• Does the solicitor understand what went wrong?
• Did the solicitor cooperate fully with the firm’s internal enquiries?
• Did the firm and the solicitor take prompt remedial action?
• Was the original document superseded by a properly executed replacement?
• Is there evidence of a broader competence concern?
• Is there any remaining risk to clients, the public or the administration of justice?

A decision is made in accordance with rule 1.1 of the SRA Regulatory and Disciplinary Procedure Rules. The rule requires the SRA to assess allegations concerning relevant persons and decide whether they should be considered under rule 3. Rule 3 deals with the substantive decisions available to an authorised decision-maker once an allegation is proved.

In this situation, the SRA accept that the matter potentially engages Principles 2 and 5, but decides that the available evidence does not disclose misconduct sufficiently serious to justify investigation.

That is more precise than saying that no potential breach arises. Witnessing requirements are still  important. Rather, it is a decision that the evidence in a particular case does not support the more serious regulatory characterisation that would make an investigation proportionate.

Human error and the purpose of enforcement

The reasoning is consistent with the SRA’s wider Enforcement Strategy.

The SRA expressly recognises that:

“both human and system error are unavoidable”.

It warns that a blanket response to every instance of non-compliance can be counterproductive. It may increase the regulatory burden and inhibit the exercise of judgment, openness and learning from mistakes. The strategy therefore says that the SRA will not need to take action solely to address a breach that is minor, where the evidence suggests it is unlikely to be repeated and there is no ongoing risk.

The strategy is particularly clear about intention:

“We will distinguish between people who are trying to do the right thing and those who are not.”

The SRA says it will generally take no action where a poor outcome results solely from a genuine mistake. The position may be different where the lack of knowledge concerns something the individual should reasonably have known, where the error demonstrates judgment of regulatory concern, or where the individual has acted knowingly, recklessly or with deliberate disregard for their obligations.

This is not a general defence of “I made a mistake”. The regulator is entitled to test whether that explanation is credible. Relevant considerations may include:

• the clarity of the requirement
• the individual’s experience and seniority
• whether the act was planned or spontaneous
• whether the solicitor knew the certification was untrue
• whether the conduct was repeated
• whether anybody was actually or potentially misled
• whether the solicitor obtained any benefit or advantage
• whether there was concealment or delay
• whether the explanation is consistent with the contemporaneous documents
• whether there remains any risk of repetition

A mistake can also disclose a competence concern where it forms part of a pattern or reflects knowledge that the solicitor should reasonably have acquired. The SRA’s competence guidance distinguishes a genuine, rectified mistake from conduct involving repeated errors, knowingly or recklessly acting outside one’s competence, misleading others, concealment, deficient supervision or failure to address training needs.

The importance of remediation and openness

The initial conduct remains central, but the Enforcement Strategy expressly treats cooperation, insight, remedial action and evidence concerning repetition or future risk as relevant to seriousness and outcome.

The SRA distinguishes contextual mitigation, which bears upon the nature and seriousness of the conduct, from personal mitigation, which is more commonly relevant to sanction. It also recognises that openness and constructive engagement may enable concerns to be addressed without formal action.

The SRA’s competence guidance follows the same approach. Some matters which do not pass the Assessment Threshold Test may still lead the regulator to seek assurances about training, supervision or competence. Equally, where a concern arises from a genuine mistake, further assurances may be unnecessary and the report may be closed without action.

Why similar cases have reached the SDT

Published SDT decisions show that false witnessing can result in serious sanctions. They also demonstrate why a comparison based only upon the physical act is inadequate.

The decisive distinction is not simply whether the solicitor signed a witness certification without being physically present. The regulator and Tribunal will examine what the solicitor knew or believed, whether the certification was consciously untrue, whether the conduct was repeated, whether the document was capable of causing harm, and what the solicitor did when the problem emerged.

SRA v Burdett

In SRA v Burdett, case number 12763-2025, a solicitor signed a deed as witness although she had not seen the relevant signature being made. The SDT found that this conduct was dishonest.

The solicitor had 22 years’ standing and substantial experience in private client work. The deed stated that it was signed “in the presence of” the witness. The surrounding evidence included an email directing that the person who had actually observed the signature should complete the attestation. The deed was subsequently sent out, and the solicitor disclosed what she had done approximately two weeks later.

An important qualification is required. The Tribunal proved only the false-witnessing allegation. The separate allegations that the solicitor had sent or caused the deed to be sent while purporting that it was validly executed, and that she had failed to inform her employer until approximately two weeks later, were not proved. Those matters formed part of the factual context, but not part of the misconduct ultimately established.

The Tribunal accepted that the dishonesty was spontaneous and isolated, caused no significant harm, and was accompanied by powerful mitigation, including an unblemished career, voluntary disclosure and genuine remorse. It found exceptional circumstances making strike-off disproportionate, but imposed a six-month suspension. The SDT concluded that, having established the solicitor’s actual knowledge and belief, ordinary decent people would regard the false attestation as dishonest.

That conclusion engaged the test in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. The Tribunal also considered the professional concept of integrity addressed in Wingate v Solicitors Regulation Authority [2018] EWCA Civ 366.

It should not be overlooked that Burdett involved the execution of an English deed. Section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 requires a deed executed by an individual to be signed in the presence of a witness who attests the signature.

SRA v Medlicott

The distinction is even clearer in SRA v Medlicott, case number 12768-2025.

The solicitor signed two leases purporting to witness the signature of a person who was not present, had not signed the documents and had never met the solicitor. The solicitor initially refused the client’s request. He then agreed to sign the leases as a “favour”. When the police later asked about the documents, he initially denied signing them before changing his account.

The initial refusal was important. The agreed facts expressly relied upon it as evidence that the solicitor knew he should not sign and knew that the certifications were untrue. This was therefore not characterised as inadvertence, misunderstanding or a failure to appreciate a technical requirement. It was the deliberate signing of statements known to be false.

The solicitor admitted dishonesty, lack of integrity and failure to uphold public trust. The SDT approved an agreed outcome of strike-off.

That is fundamentally different from a case in which the available evidence supports a genuine misunderstanding, followed by openness, cooperation and prompt correction.

SRA v Langley

Although not a witnessing case, SRA v Langley, case number 12494-2023, provides a useful comparison involving false professional certification.

The solicitor copied and pasted a colleague’s electronic signature onto six statements of truth and caused the documents to be filed at court. The SRA withdrew the allegation of dishonesty because it could not establish the solicitor’s state of mind to the required standard.

The absence of a proved case of dishonesty did not prevent serious regulatory action. The SDT took account of the solicitor’s substantial experience, his status as a partner with supervisory responsibilities, the repetition of the conduct across six documents, and the potential effect of placing documents before the court which appeared to have been verified by somebody who had not seen them. It imposed a 28-day suspension.

Langley therefore demonstrates that dishonesty is not the only route to enforcement. Repetition, seniority, potential harm, interference with court documents and the misuse of another professional’s signature may make conduct sufficiently serious even where dishonesty cannot be established.

The broader regulatory direction

The SRA’s approach sits within a wider debate about how legal services regulation should identify and prioritise risk.

The government-published Independent Public Bodies Review of the Legal Services Board, issued in July 2026, called for more proportionate and effective supervisory oversight. It recommended a preventative, risk-based model which avoids unnecessary prescription and recognises the differing scale, role and capacity of regulators. It also called for stronger prioritisation, better use of data and intelligence, and the reduction of low-value administrative burdens.

Significantly, the review recommended that the Legal Services Board, frontline regulators and the Ministry of Justice establish a shared framework for market and consumer risk which recognises that:

“a zero-risk approach is neither feasible nor desirable”.

It also emphasised the importance of identifying activities which add the greatest value and those which should be reduced, streamlined or discontinued.

These published materials point towards a policy of sharper differentiation between isolated, remediated error and conduct revealing dishonesty, recklessness, repetition, systemic weakness or continuing risk.

That conclusion should not be overstated. It is not possible, from published SDT decisions alone, to determine how frequently or consistently the SRA closes comparable cases at the assessment stage. Decisions not to investigate are not represented in the published tribunal caseload in the same way as cases which proceed to disciplinary action.

What can safely be said is that the SRA’s published policy framework expressly permits different outcomes for superficially similar conduct. It requires decision-makers to examine culpability, harm, intention, repetition, remediation and future risk rather than relying solely on the label attached to the original act. As the SRA says:

That is not regulatory leniency. It is risk-based regulation.

Lessons for solicitors and firms

1. The characterisation of the conduct matters. The fact that a document was incorrectly witnessed does not, by itself, determine whether the solicitor acted dishonestly, without integrity, recklessly or incompetently. The contemporaneous evidence of knowledge and intention is likely to be crucial.

2. Remediation should be prompt, proportionate and evidenced. Correcting the document, preventing reliance upon it, checking for similar incidents, reviewing the relevant procedure and documenting any necessary training or supervision can help demonstrate that no ongoing risk remains.

3. Representations should address the Assessment Threshold Test directly. A response should not merely deny misconduct. It should identify the relevant stages of the test and explain why (assuming the evidence supports the submission), the matter does not satisfy one or more of them. Particular attention should be paid to seriousness, proportionality, intention, potential harm, repetition, remediation and future risk.

The most persuasive response may be one which acknowledges the applicable professional standard, identifies precisely what went wrong, and then explains why the evidence does not support the more serious regulatory characterisation being suggested.

Conclusion

The Assessment Threshold Test is more than an administrative filter. It is the framework through which the SRA decides whether the public interest requires a formal investigation.

A witnessing error can plainly engage questions of integrity and public trust. But the need for regulatory action depends upon more than the label attached to the conduct. The SRA must consider the evidence about the solicitor’s state of mind, the actual and potential harm, whether the conduct was repeated, the adequacy of the response and whether any continuing regulatory risk remains.

The published SDT cases demonstrate the other side of the boundary. Where the evidence establishes conscious falsification, dishonesty, repetition, misuse of another person’s signature or the placement of misleading documents before a court, the consequences can be severe.

For regulatory practitioners, the lesson is straightforward. Important work often takes place before an investigation is opened. A carefully prepared response, grounded in the SRA’s own Assessment Threshold Test and Enforcement Strategy, can help ensure that an isolated professional error is assessed according to its true seriousness and risk, rather than being treated as evidence of something more culpable.

Evan Wright is a partner and barrister at JMW Solicitors, specialising in professional regulation defence.

Olivia Gregson is a paralegal in the professional regulation team.