An allegation that a solicitor misled a client is never a minor matter. Even where there is no suggestion of dishonesty, an inaccurate statement can put a client’s interests at risk and undermine confidence in the profession. For the solicitor facing investigation, the immediate concern is often whether the matter will be referred to the Solicitors Disciplinary Tribunal (SDT).

I recently represented a solicitor investigated over communications made during a transaction. The SRA concluded that the communications had misled clients and identified a risk to their interests. It nevertheless closed the investigation with a warning, rather than imposing a disciplinary sanction or referring the solicitor to the SDT. The result was favourable, but it was not an exoneration: a warning is not published but remains on the SRA’s records and may be relevant if further concerns arise.

The case illustrates a point that is easily lost when an allegation is first expressed in stark terms. The nature of the concern matters, but so does the evidence, the solicitor’s state of mind, the surrounding circumstances and the regulatory response needed to address the risk.

What did the SRA investigate?

The investigation arose from statements that gave clients an inaccurate understanding of a transaction’s progress. The underlying documents required careful attention. They could not responsibly be answered by saying that nothing had gone wrong, or by treating the issue as merely a difference of interpretation. The SRA’s eventual assessment recognised that clients had been misled and that their interests had been placed at risk.

Paragraph 1.4 of the SRA Code of Conduct prohibits a solicitor from misleading or attempting to mislead clients or others, whether by an act or an omission. A solicitor’s intention is therefore not the only question. An inaccurate assurance may be professionally significant even if it was not deliberately deceptive. At the same time, whether the solicitor intended to mislead is plainly important when assessing the seriousness of the conduct and the appropriate outcome.

That distinction was central here. The SRA did not withdraw its concern about the effect of the communications. It did, however, conclude that there had been no deliberate intention to mislead. It also took account of:

• the circumstances in which the error arose,
• an explanation supported by information from the former firm,
• the isolated nature of the incident,
• the solicitor’s lack of adverse regulatory history,
• and their cooperation with the investigation.

Those were findings recorded by the SRA, not assumptions that an allegation of misleading conduct should automatically be treated leniently.

Why a structured response matters

A response to the SRA should do more than offer a general denial or a plea for sympathy. It should help the investigator and, ultimately, the decision-maker answer a series of separate questions:

• what does each document show?
• what did the solicitor know at the relevant time?
• which aspects of the allegation are accepted or disputed?
• what does the evidence say about risk, intention and repetition?

In this matter, the response was developed with the client and submitted during the investigation. The important methodological lesson is to address adverse material directly. If a communication was inaccurate, a credible response should say so where the evidence requires it. The solicitor can then explain, with support where available, how it came to be sent and why the conduct should not be characterised more seriously than the evidence justifies.

Structure also helps prevent two different arguments from being confused. One concerns proof: what happened, and what can fairly be inferred about the solicitor’s knowledge? The other concerns outcome: assuming the established conduct falls below the required standard, what action is proportionate?

A response may fail if it concentrates on the solicitor’s good intentions while overlooking the effect on clients. It may equally fail if it concedes a deliberate state of mind that the evidence does not establish. The SRA’s published decision-making guidance calls for an objective assessment of each case on its own merits, using relevant and sufficient information.

How does the SRA decide whether to refer a case to the SDT?

An investigation does not automatically lead to tribunal proceedings. The SRA may close it, take action within its own powers or issue proceedings before the SDT. Its Enforcement Strategy requires a judgment about seriousness and proportionality in the circumstances of the particular case, including aggravating and mitigating factors.

The test for SDT proceedings has two parts. Under rule 6.1 of the SRA Regulatory and Disciplinary Procedure Rules, the SRA must be satisfied that there is a realistic prospect of the Tribunal making an order and that it is in the public interest to make the application. Its guidance explains that this involves considering

• whether the conduct can be proved,
• whether it breaches the applicable requirements and
• whether it is serious enough to warrant a tribunal order.

A public hearing may be particularly important where material facts or a contested state of mind need to be tested.

A warning is different from a rebuke, fine or SDT order. In this case, the SRA expressly stated that its warning was not a disciplinary sanction and would not be published on its website. It also made clear that repeated conduct could attract more serious action and that the warning could be considered in a future investigation. Describing the outcome accurately matters. It was the closure of a serious investigation without formal disciplinary action, not a finding that the original communications were unobjectionable.

Why did other misleading conduct cases reach the SDT?

Published decisions are useful comparisons, provided they are not treated as a tariff. In its published referral concerning Alejandro Verdu de Haro, the SRA alleged misleading statements about the status of clients’ litigation over a period of years, together with a misleading statement to the opposing party. Mr Haro was struck from the Roll of Solicitors. In its referral concerning Julian Condliffe, the published allegations extended beyond communications about a property transaction to statements made to the SRA and a court. Ms. Condliffe was struck from the Roll. These were referral notices, not findings that every allegation had been proved. They illustrate features that may distinguish one misleading conduct investigation from another, including an alleged pattern over time and the range of people or institutions said to have been misled.

The present case cannot be reduced to the proposition that “no dishonesty means no referral”. The SRA’s guidance recognises that conduct may be serious either on its own or as part of a persistent failure. What made the outcome intelligible was the regulator’s assessment of the whole case: serious inaccurate communication and risk to clients on one side, and its express findings about lack of deliberate intent, isolation, corroborated context, regulatory history and cooperation on the other.

The practical lesson

Solicitors facing an SRA investigation need to draft a response that is candid about the evidence and precise about its significance. A disciplined chronology, a document-by-document analysis and an informed application of the Enforcement Strategy can help the regulator distinguish between conduct that requires tribunal proceedings and conduct that can be addressed proportionately without a referral to the SDT. None of those steps guarantee an outcome. In this case, however, the result demonstrates why the seriousness of an allegation should be examined carefully rather than assumed to dictate the destination of the investigation.

Evan Wright is a partner and barrister in JMW Solicitors’ Business Crime and Regulatory team and represents solicitors facing professional regulatory investigations.