Procedural effectiveness of the SDT is very important. The primary purpose of disciplinary proceedings is to protect the public and to maintain public confidence in the integrity of the profession. If a profession has a disciplinary process that is seen to be ineffective or inefficient, that will of itself be damaging to the reputation to the profession. There have been numerous statements to this effect. Underpinning these statements is the recognition that a strong legal profession is very important to maintaining the rule of law.

The classic statements are those of Sir Thomas Bingham, MR (as he then was), in Bolton v The Law Society [1994] 2 All ER 486. The Master of Rolls said that the purpose of disciplinary proceedings is (at 491-92):

“to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth ... A profession’s most valuable asset is its collective reputation and the confidence which that inspires ... Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal.”

The approach in Bolton was cited with approval by the Privy Council in Gupta v General Medical Council [2002] 1 WLR 169. In Salsbury v Law Society of England and Wales [2009] 2 All ER 487, Jackson LJ talked about ‘protecting the public interest’. Lord Collins, albeit in an appeal concerning disciplinary proceedings in the UK accountancy profession, R (on the application of Coke-Wallis) v Institute of Chartered Accountants of England and Wales [2011] 2 All ER 1, put it like this (at 19): “The primary purpose of professional disciplinary proceedings is not to punish, but to protect the public, to maintain public confidence in the integrity of the profession, and to uphold proper standards of behaviour.”

In Hong Kong, in the context of analysing the careful and rigorous consideration which should be given by the Law Society before disciplinary proceedings are instituted, Stone J held: “The existence of regulatory disciplinary proceedings was important in promoting public trust”, in A Solicitor (274/06) v Law Society of Hong Kong [2007] 5 HKC 58. In A Solicitor (24/07) v The Law Society of Hong Kong [2008] 2 HKC 1, Bohkary PJ cited (at 42-3) with approval a statement of Mason J (as he then was) in Weaver v Law Society of New South Wales (1979) 142 CLR 201: “Where maintaining standards within the professions and services is involved, the courts are always minding of their duty to protect the public.”

Key requirements to maintain confidence in the disciplinary process for solicitors

How is public confidence going to be best maintained in the disciplinary process? The courts have identified five main requirements.

First, as Stone J said in A Solicitor (274/06), ‘proceedings should not be instituted absent most careful and rigorous consideration’. The SDT has a role in making sure that this happens, including in extreme cases by way of exercise of its powers under rule 6 of the Solicitors Disciplinary Tribunal Proceedings Rules (Cap 159C) to dismiss an application which does not show any prima facie case and, in any event, to comment negatively in any cases which do not appear to have been carefully and rigorously prepared. Imposing costs orders against the Law Society also should have the effect of encouraging good case preparation by the Law Society and the SDT should not be shy in imposing such costs orders. It is clear that the standard approach following an unsuccessful disciplinary action before the SDT in Hong Kong should be that, ‘unless good reason exists, the solicitor should be entitled to a costs order in his or her favour. In other words, costs should generally follow the event’: A Solicitor (274/06) per Ma CJHC (as he then was) at 69. The general principle has recently been confirmed also in Tsien Pak Cheong David v Securities and Futures Commission [2011] 4 HKC 410.

Second, disciplinary proceedings need to be concluded as speedily as is practicable, consistent with the requirement that there must be due process. As Lord Denning said in Christopher John Moran v Lloyd’s (A Statutory Body) [1981] 1 Lloyd’s Rep 423: “It is of the utmost importance that disciplinary proceedings should be brought to a conclusion at the earliest practicable moment.” Although that case was concerned with statutory disciplinary proceedings before Lloyd’s, the London-based insurance broker, Lord Denning observed that the same considerations apply to many other kinds of disciplinary proceedings: “One has in mind proceedings instituted before the Disciplinary Committee of the Law Society and other professional bodies.” Lord Carswell in R (on the application of Green) v Police Complaints Authority [2004] 2 All ER 209 at 233, said, in the context of police disciplinary proceedings: “If citizens feel that improper behaviour ... is left unchecked and they are not held accountable for it in a suitable manner, ... confidence will be eroded.”

Third, as Stanley Burnton LJ said in Virdi v Law Society (Solicitors Disciplinary Tribunal intervening) [2010] 3 All ER 653 at 664: “In the case of a disciplinary tribunal, it must have powers conferred on it if it is to make legally binding decisions, including rulings as to its procedure which, if not complied with, may have legal consequences.”

Fourth, the SDT must give reasoned decisions, because, as was stated in Solicitors A and B v Law Society of Hong Kong [2005] 2 HKC 573 at 580, ‘what is essential is that the parties involved should know exactly not only what the Tribunal decided but the reasons therefor’, but the writing of such decisions should not take undue time. As Le Pichon JA also put it in A Solicitor v Law Society of Hong Kong [2009] HKCU 113 at [19]:

“Solicitors’ disciplinary proceedings are not criminal proceedings ... there is no requirement that the reasons must address every single issue that arises. If the issues that arise for serious consideration have been addressed by the tribunal and the reasons are not defective in substance, they should not be considered inadequate.”

Delay in giving a reasoned decision might, in extreme cases, be a reason for casting doubt on the integrity of the decision and the disciplinary outcome: see Nash v Chelsea College of Art & Design [2002] EWCA Civ 69. Delay which prejudices the right to a fair trial might also be regarded as unreasonable, rendering ‘the position irretrievable’: R v Her Majesty’s Advocate and Another [2002] UKPC D3 at [76] per Lord Steyn.

Fifth, the SDT should get its decisions right, both as to whether there has been professional misconduct which warrants the imposition of disciplinary sanctions, and in terms of the appropriate penalty. As Jackson LJ put it in Salsbury (at 498): “The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed Tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest.” See also the comments of Cheung JA in A Solicitor v Law Society of Hong Kong [2004] 2 HKLRD 490 at 504.

Due process

There are many authorities, both in Hong Kong and elsewhere, which also emphasise the fundamental importance of due process, or natural justice. As Lord Steyn put it in R v Her Majesty’s Advocate at [76], ‘a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’ or, as said by Lord Jackson in Bimal Bhupendra Thaker v Solicitors Regulation Authority [2011] EWHC 660 (Admin) at [60]: “If a solicitor is going to be struck of the Roll for acts of dishonesty or gross recklessness, he is entitled to a fair process and a fair hearing before that decision is reached.”

Key features of natural justice which have been identified specifically in the context of solicitors disciplinary tribunal proceedings include:

• adequate notice and particulars of the charges;
• the right to be heard by an independent and unbiased tribunal;
• the right to be heard in answer to the charges;
• disputed issues which can substantially affect sanctions being resolved in a procedurally fair manner;
• a reasoned decision written by the tribunal itself;
• parties being able to address the tribunal on the appropriate sanctions; and
• the imposition of appropriate sanctions.

See, amongst other decisions, Levy v Solicitors Regulation Authority [2011] EWCA 740 (Admin), Singleton v Law Society [2005] EWHC 2915 (Admin) and A Solicitor (24/7).

Procedural requirements of the Legal Practitioners Ordinance (Cap 159) and the Solicitors Disciplinary Tribunal Proceedings Rules Clearly, there must be adherence to the mandatory procedural requirements of the Solicitors Disciplinary Tribunal Proceedings Rules, which are:

• rules 8 and 9 – a notice in the prescribed form;
• rule 9 – a list of all documents to be relied on by any party at the hearing of the matter to be provided to the Tribunal and all other parties at least 14 days before the hearing;
• rule 10 – a right to inspect the documents contained in any party’s list and the right to receive a copy within seven days;
• rule 12 – the right to representation by solicitor or counsel;
• rule 13 – the right, of a party who fails to appear at any hearing, to apply, within one month of pronouncement of findings, for a rehearing;
• rule 14 – the right to require a deponent to an affidavit to be available for cross-examination, unless the person is absent from Hong Kong or for any other good and sufficient reason unable to
give evidence at the hearing;
• rule 35 – the application of the Evidence Ordinance (Cap 8) to proceedings before the Tribunal; and
• rule 36 – the right to serve notices to admit.

In addition, the Tribunal is given various important powers by ss 10 and 11 of the Legal Practitioners Ordinance (LPO) and the Solicitors Disciplinary Tribunal Proceedings Rules. These are:

• section 10(2)(e) – the power, following the conclusion of the proceedings, to make costs orders;
• section 11 – the powers by way of summons to: (a) enforce the attendance of witnesses and examining them upon oath or otherwise; (b) compel the production of documents; (c) punish persons guilty of contempt, including by way of imprisonment for up to one month; (d) order an inspection of any property; (e) conduct the examination of witnesses; and (f) adjourn any meeting from time to time and from one place to another;
• rule 27 – the power of the Tribunal to adjourn the hearing on such terms as to costs as the Tribunal thinks fit;
• rule 29 – the power of the Tribunal to require amended or further affidavit evidence;
• rule 30 – notes to be taken of the proceedings;
• rule 31 – provisions as to service of notices or other documents;
• rule 32 – power of the Tribunal to dispense with any requirements respecting notices, documents, affidavits, service or time; and
• rule 33 – power of the Tribunal to extend or abridge time.

The mandatory ‘natural justice’ procedural requirements are very important but are limited in terms of identifying a specific procedure. They are to be contrasted, for example, with the High Court Rules (Cap 4A). One finds very much the same approach with the Securities and Futures Appeal Tribunal (SFAT). The procedural framework for disciplinary proceedings before the SDT, established under the LPO, bears more than a passing resemblance to proceedings before the SFAT, established under the Securities and Futures Ordinance (Cap 571), subject to the important distinction that the former exercises control over a self-regulating profession, while the latter hears appeals arising from matters determined by a regulator regulating people with different training, backgrounds, and experience. This ‘compactness’ in procedure is a common feature of disciplinary proceedings, including those before statutory tribunals. As one author has recently commented:

“It is not a requirement of law that the procedures of a tribunal be elaborate enough to cover every matter which might arise in connection with the disciplinary process. Where there are gaps, they can be filled by the tribunal, always bearing in mind that the process must be one which is capable of achieving justice and fairness between the parties in respect of the matters at issue, per Newman J in R (on the application of Heath) v The Home Office Policy and Advisory Board for Forensic Pathology [2005] EWHC 1793 (Admin)” ~ Brian Harris OBE QC, Disciplinary and Regulatory Proceedings (6th ed, 2011), p 245.

In achieving procedural effectiveness, it is a question of balance. Balance between, on the one hand, the requirements of natural justice and, on the other, the public interest in seeing procedural economy and speed on the part of the SDT, together with the application of relatively limited fixed procedural rules and considerable flexibility.

Are there indications of procedural inefficiency?

Certain questions arise such as how to assess the performance of the SDT? Is the SDT generally getting the balance right?

Although there does not appear to be detailed statistical analysis (eg as to the timing of proceedings) published by the Law Society, equally, there does not appear to be any expressions of concern about the disciplinary process on the part of the general public, whether from individuals or from consumer protection watchdogs. This is to be contrasted with the UK where, certainly during the last decade, the Law Society of England and Wales has been quite heavily criticised for delay, particularly, but not exclusively, at the investigation stage. 

Having reviewed all of the decisions of the Hong Kong Court of Appeal issued in the last 10 years relating to tribunal decisions, the impression is that the issues of delays and costs may be of some concern in Hong Kong.

In a number of cases, it appears that proceedings before the SDT have been quite elaborate, and taken more than one year, occasionally significantly more than one year, to be heard. In some cases, the delay appears to have occurred between the commencement of the disciplinary proceedings and the substantive hearing. In other cases, it appears to have taken quite some time (a year or more) for a decision to be handed down by the SDT. Significant time may also have elapsed both in reaching a hearing and in the giving of a decision.

In some of those cases, the delay was attributed, perhaps not surprisingly, to the respondent solicitor. But, in others, quite often considerable time was taken at the investigation stage, which is beyond
the SDT’s control.

Aspects for focus

However, even allowing for difficulties in controlling costs and time generated by respondents, it seems useful to ask the question: what are the aspects where most focus should be paid by a tribunal, in order to move things forward effectively?

Adjournments
The starting point is that if, as a result of a hearing being fixed for a specific date, it appears that a respondent is genuinely at risk of not being able to do justice to his or her case, then it may be necessary to adjourn. This is so no matter how inconvenient to those prosecuting the disciplinary charges or the SDT. Not granting a justified adjournment is likely to amount to a breach of natural justice. Examples in the context of legal profession disciplinary proceedings include ill-health; criminal proceedings; other compulsory attendance at a court hearing; and being taken by surprise by new evidence. However, whilst that might indicate a cautious attitude to adjournments, an unexplained failure to substantiate the grounds for an adjournment may well justify a refusal to adjourn. Repeated applications on weak or suspicious grounds may result in refusals. There is authority, at least from the English High Court, that hearings should not be fixed merely because the respondent prefers certain dates and also while the respondent has the right to legal representation, he or she does not have the right per se to insist that a hearing should be adjourned to a date convenient to a particular solicitor or counsel: see M (J) v M (K) [1968] 3 All ER 878 at 880.

Interim costs orders
Section 10(2)(e) of the LPO, permits the SDT to make costs orders, including the power to require payment of a summarily assessed amount, without the need for a taxation. This seems to follow from the words ‘payment of an amount that the Tribunal considers is a reasonable contribution to those costs’. However, it seems fairly clear from the words ‘on completion of its enquiry and investigation’ that this power does not entitle the SDT to make interim costs orders at an interlocutory stage. This is, perhaps, a pity. As in the High Court, interim costs orders might be a useful tool to encourage a party  not to delay matters or waste time. However, it would seem possible for the SDT to give an indication at an interlocutory stage that it is provisionally minded, subject to what happens during the course of the proceedings, to make an order at the end of the proceedings that certain costs should be paid by one party on an ‘in any event basis’.

Expert evidence
The courts have consistently emphasised the expert nature of a tribunal such as the SDT, in the context of indicating the respect which the appellate courts will give to aspects of decisions which involve the expertise of a tribunal: see Salsbury and A Solicitor v Law Society of Hong Kong [1996] 1 HKC 256 considered in A Solicitor v Law Society of Hong Kong [2004] 2 HKLRD 490 at 504. This point was very forcefully made more recently in Hong Kong in respect of the SFAT in Tsien Pak Cheong David in which Tang Ag CJHC held (at 426): “I agree that the SFAT is ... an expert and informed tribunal. It is the SFAT’s decision which should command the court’s special respect.”

One would therefore expect that the starting point would be that no expert evidence would be required, and it should only be permitted in exceptional cases. The only sort of case where it seems to be quite possibly appropriate to allow expert evidence would be where the case concerns conduct in a very specialist technical area of legal practice.

Hearings
It is commonplace at the directions hearing for directions to be given for an exchange of two rounds of affidavit evidence, and then for discovery, followed by notices to admit facts and documents, and only thereafter (typically a 28-week period) will hearing dates be fixed. Three questions might be worth considering. First, are notices to admit facts and documents effective in practice, or could this stage in the proceedings be dispensed with? Second, is there any benefit (weighed against the risk of an adjournment being necessary) of fixing hearing dates at a much earlier stage as, for example, commonly occurs with the SFAT? Third, the hearings themselves. As is the case nowadays with the High Court, and is certainly the case in arbitration proceedings, can tribunals exercise more control over the conduct of a hearing, in particular imposing time limits on submissions and on the length of time permitted to cross-examine witnesses?

Decisions
Members of the SDT are inevitably going to be senior and busy members of the profession but it is important for all concerned that they do not unnecessarily delay finalising a decision.

However, as already indicated, the courts have made it very clear that disciplinary proceedings are not criminal proceedings and do not therefore require the same minute attention to detail, particularly when it comes to rendering decisions. Further, as mentioned, the Court of Appeal will tend to give due respect to the expertise of domestic tribunals. In addition, the public would expect proceedings before the SDT to be relatively flexible and speedy and that its decisions would be given relatively quickly, subject only to the important qualification that natural justice must be met.

Conclusion

The remarks in this article may provide a useful approach for the SDT’s work in the future and form the basis of a pragmatic discussion amongst members of the profession themselves as to the work and conduct of the SDT.

Martin Rogers
Head of Litigation and Dispute Resolution, Asia-Pacific
Clifford Chance

This article is based on a speech given by the author at a Seminar for Members of the SDT Panel and Clerks of the SDT on 23 November 2011 held at Club Lusitano, Hong Kong.