Lebow, Re a Solicitor No 13 of 2007

Factual and Procedural Background

This appeal concerns a decision by a Law Society adjudicator on 29 May 2007 to impose conditions on the Appellant's 2006/2007 practising certificate. The conditions prevented the Appellant from acting as a sole principal or director of a legal practice or from acting with co-principals with less than three years' post-admission experience unless approved by the SRA. An appeal against this decision to the Law Society's appeal panel was dismissed on 31 July 2007. The Appellant then brought this appeal under section 13(2)(b) of the Solicitors Act 1974 seeking the removal of these conditions.

The Appellant was admitted as a solicitor in 1983 and practised as a sole practitioner until 2003, when difficulties in obtaining professional indemnity insurance caused her to cease sole practice. She subsequently worked as a consultant and employed solicitor. The Appellant has a regulatory history involving multiple reprimands and warnings between 1999 and 2004 for breaches of Solicitors' Accounts Rules and Indemnity Insurance Rules.

Conditions were previously imposed on her practising certificate requiring the filing of accountant's reports due to her failure to file such reports timely. Despite these conditions, several accountant's reports remained outstanding as of 2007. The adjudicator declined to impose previous conditions requiring half-yearly accountant's reports due to lack of confidence in the Appellant's compliance, instead imposing the current conditions to protect the public and the profession's reputation.

Legal Issues Presented

1. Whether the conditions imposed on the Appellant’s practising certificate were necessary and proportionate as a regulatory measure.
2. Whether the failure of the Appellant’s accountant to file reports should mitigate the imposition of conditions on the practising certificate.
3. Whether the absence of an oral hearing before the adjudicator and appeal panel infringed the Appellant’s rights under Article 6 of the European Convention on Human Rights.
4. Whether the Law Society’s failure to make the relevant 2001 regulations readily available prejudiced the Appellant’s appeal rights.

Arguments of the Parties

Appellant's Arguments

• The adjudicator and appeal panel failed to properly consider the Appellant’s personal circumstances, including caregiving responsibilities and difficulties in securing an accountant, which contributed to late filing of reports.
• The failure to file accountant’s reports was due to the Appellant’s accountant’s error, compounded by misinformation that the reports had been filed.
• The Appellant should not be penalised for the accountant’s failure as she relied on their expertise and would have appealed earlier if aware of the filing issues.
• The requirement to file a ‘cease to hold’ certificate is unreasonable and duplicative, given the Law Society already possesses relevant bank statements.
• The conditions are unnecessary and unduly onerous since the Appellant has not practised as a sole practitioner since 2003 and currently works as a consultant.
• The absence of an oral hearing before the adjudicator and appeal panel breaches Article 6 rights, especially as the Appellant was not informed of the possibility of such a hearing.
• The Law Society failed to make the Master of the Rolls (Appeals and Applications) Regulations 2001 readily available, contrary to the spirit of the European Convention on Human Rights.

Law Society's Arguments

• The Appellant provided no evidence that undue weight was given to the caseworker’s report; the responsibility to file accountant’s reports lies with the solicitor, not the accountant.
• The Appellant remains in breach of her professional obligations by failing to file several outstanding reports and the ‘cease to hold’ certificate, although the SRA acknowledges the Appellant has applied for a waiver regarding the latter.
• The regulatory process aims to protect clients and the profession’s reputation, and is distinct from disciplinary proceedings.
• The Appellant’s continued use of a client account after 2003 necessitated the filing of accountant’s reports, regardless of her claim that she ceased sole practice.
• The lack of an oral hearing was not prejudicial as the Appellant never requested one; this failure is fatal to her procedural argument under both common law and Article 6, supported by precedent.
• The right of appeal to the Master of the Rolls, which includes an oral hearing, satisfies Article 6 requirements.
• Any failure to make the 2001 regulations readily available did not prejudice the Appellant, who filed her petition in time and was aware of the appeal rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a re-hearing but gave considerable weight to the decisions of the adjudicator and appeal panel, recognising the regulatory context aimed at protecting the public and profession’s reputation. It acknowledged the Appellant’s personal difficulties and the accountant’s failings but emphasised that the ultimate responsibility for filing accountant’s reports rests with the solicitor. The court found no flaw in the adjudicator’s conclusion that more stringent conditions were necessary due to multiple outstanding reports over an extended period.

The court distinguished regulatory conditions from disciplinary sanctions, noting that conditions are preventative and protective rather than punitive. It recognized that the imposition of conditions was proportionate and reasonable to mitigate future risks if the Appellant returned to sole practice.

Regarding procedural fairness, the court relied on precedent to hold that the absence of an oral hearing before the adjudicator and appeal panel did not infringe the Appellant’s Article 6 rights, particularly as she did not request such a hearing. The appellate process before the Master of the Rolls, which includes oral hearings, was deemed sufficient to meet Convention standards. The court also found no prejudice from the Law Society’s failure to make certain regulations readily available, as the Appellant successfully filed her petition.

Holding and Implications

The court DISMISSED THE APPEAL, upholding the conditions imposed on the Appellant’s practising certificate.

The direct effect is that the Appellant must continue to comply with the regulatory conditions restricting her from acting as a sole principal or with inexperienced co-principals unless approved by the SRA. The decision does not set new precedent but affirms the regulatory framework’s emphasis on protecting the public and the profession’s reputation through necessary and proportionate conditions. The court’s ruling confirms that responsibility for compliance with regulatory filing requirements rests with solicitors themselves, regardless of third-party failures, and that procedural safeguards under Article 6 are satisfied by the existing appeal mechanisms.