Faced With Disciplinary Proceedings
A guide for non-lawyers
It can happen to anyone. There are few of us who at some time or another in our career are not the subject of a complaint to our professional body or regulator (both called regulator below). It may simply be a misunderstanding, it may be malicious and baseless or it can disclose an exceptional lapse. The result can be a formal investigation followed by a disciplinary hearing. Disciplinary proceedings can drag on over many months, even years. They can be time consuming and costly. Even worse is the stress which these proceedings can entail. At their worst, the outcome can be disastrous for your career or reputation. The following notes have been written for the guidance of anyone who finds him or herself in such a predicament. They are not intended to replace a lawyer; indeed, they are careful to point out the circumstances in which legal representation may be called for.
How does it start?
Disciplinary proceedings usually begin with a letter from the regulator requesting comment on a complaint or other cause for investigation, such as the result of a routine inspection. The first thing to do when you receive such a letter is to consider whether you are legally or ethically obliged to inform your partners or your employer. The next step is to turn up your professional liability or other insurance policy and check to what extent it entitles you to reimbursement for the cost of legal assistance should that prove necessary. (Insurance companies usually require that you notify them of a possible claim as soon as it arises and a failure to report can invalidate the policy.)
Should I instruct a lawyer?
If the charge is serious then, unless you know it to be baseless and easily refutable you would be well advised to consult a lawyer at the earliest possible moment; legal advice, like medicine, is best taken early. When it comes to choosing a lawyer make sure that you go to one who has experience of the particular tribunal, or at least of disciplinary proceedings generally, and not simply your trusted family solicitor. If you don t know of such a lawyer ask your regulator if it has a list of lawyers who regularly practise before its tribunal.
Legal representation, like marriage, is not something to be entered into lightly; in the case of the heavyweight tribunals the costs can be steep. Depending on the extent to which your livelihood or reputation is at risk only you can decide how much you are willing to pay to defend them. While most regulators are only too pleased to charge their costs to someone found guilty of misconduct, they seldom have any provision whereby a successful defendant can get back his costs. Where two or more people are under investigation, therefore, it may make good sense, unless of course there is a conflict of interest, for them to share a lawyer. If legal costs are not covered by insurance and you cannot afford to pay for a lawyer out of your own pocket there are two possible solutions. In the case of public authorities at least, there may be a case for arguing that the authority itself is required on human rights grounds to pay for your legal advice. At the last resort, both solicitors and barristers have public interest arrangements, known as pro bono schemes, under which solicitors and barristers provide their services free. (To find out about these schemes contact the Law Society or the Bar Pro Bono Unit.)
Even if you do not intend to have a lawyer represent you throughout the proceedings you can always take legal advice before you commit yourself to any particular course of action.
Remember, a lawyer can be helpful both if you are contesting a charge and if you are admitting it but are anxious to avoid suffering the worst consequences. And if you decide to go it alone at the outset always be prepared to reconsider your decision if your position gets worse later on.
Should I go for a settlement?
If you reluctantly have to accept that you have no defence to a charge of misconduct - and you may not be in a position to decide that until the conclusion of the investigation - most organisations permit defendants to accept their guilt and any consequent penalty without the necessity for full-blown disciplinary proceedings. Such arrangements go by a variety of names, but they will probably be made known to you at the outset because everyone benefits by avoiding unnecessary costs. The fact that the correspondence from the regulator does not mention the possibility of a settlement does not mean that it does not have such a scheme, but you should be careful not to make any admission until you have discovered whether it will be to your advantage. (This is the sort of negotiation that a lawyer can sometimes carry out more easily than the person under investigation.)
Some settlement schemes are restricted to the less serious forms of misconduct, while others permit settlement of even the gravest charges. The graver the misconduct, of course, the more severe the likely penalty, in the worst cases perhaps even involving a loss of practising rights or livelihood. Whether to go for a settlement or not involves balancing the disadvantages of fighting a charge against the likely consequence of admitting it. If after careful thought and, perhaps, consultation with your partners or employer, you come to the conclusion that defending an accusation is just not worth the candle then the sooner that you agree to a settlement the better.
What form will the investigation take?
What happens next will depend on the rules of the particular regulator. (A well-run body will send you a copy at the outset; if they don't, ask for one immediately.)
Regulators are well aware that many complaints are groundless, even malicious. However, they have no means of knowing this until they have looked into the facts. The first thing to remember, therefore, is that, however unjustified an allegation may appear to you, your regulator can't ignore it and neither can you. Indignation, no matter how strongly felt, is no substitute for the reasoned rebuttal of an accusation. Unless you know yourself to be guilty and simply hope to get away with it for lack of evidence, your best course is to co-operate wholeheartedly in the investigation, to respond promptly and to lay all your cards on the table. Aggressive commercial tactics are seldom appropriate when responding to inquiries from a regulator. Indeed, a failure to co-operate in a disciplinary investigation can itself be grounds for disciplinary proceedings. And the longer the investigation is drawn out the heavier the costs are likely to be if the decision goes against you. If your explanation is convincing and backed up by supporting documentation, where appropriate, there is every likelihood that the problem will go away at this stage, leaving you annoyed but unscathed.
You may be worried that responding to a regulator's inquiries will involve disclosure of client information. You are in law entitled to disclose to the regulator but to no one else - confidential information if that is necessary to resist a charge of misconduct. However, it will usually be prudent to seek the client's permission before taking this course. On the other hand there may be some facts or admissions which you have good reason to withhold from a complainant. If that is the case then you should inquire of the regulator whether it is willing to receive information on the understanding that it will not be passed on to anyone else.
Regulators are under pressure to clear up their investigations swiftly. They may, for example, seek a response to their initial inquiry ' within fourteen days' , and you would be wise to do everything you can to comply. If for any reason you cannot meet this deadline write at once explaining why ('I am going on holiday', 'I need time to get the necessary documents' or whatever) and suggest an alternative date which you can meet. Simply not responding is not an option; there is no point in irritating the person who may have to decide your fate.
In the more formal types of investigation you may be required to attend for interview with the regulator which will be recorded and which may be used against you at any future hearing. There is nothing frightening about this; in fact if you are innocent it will usually work to your advantage. (A formal interview is a more acceptable arrangement than being questioned off the cuff at a site visit.) An interview should not be conducted like an ambush; if it is to be useful you should be informed of its likely scope beforehand. Nor should there be any objection to your lawyer being present if you have instructed one, but remember that these are not legal proceedings and you have no right of silence, even in matters of a criminal nature.
Another power which regulators are increasingly coming to assume is the power to order someone under investigation to obtain at his own expense a report on, for example, his financial affairs. There is no right of appeal against such an order, but if you should be exonerated at the end of the proceedings you should expect to be able to reclaim your costs.
What if they decide to prosecute?
If the investigation shows no cause for disciplinary action that will be the end of the matter, but if the regulator does decide to bring disciplinary proceedings against you the process now changes gear. (This is the time to reconsider making an offer of settlement.) You will be served with formal documents setting out the charges and the case against you, ie the facts which the prosecution believe they can prove. (The term, ' misconduct' is used throughout this note, but the terms of the charge will vary according to the regulator's rules.) A timetable will be appointed culminating in a date for a hearing before a tribunal. It is vital that this timetable should be kept to and if that becomes impossible for any reason the regulator should be notified immediately of the reason why. Your regulator will rightly expect disciplinary proceedings to take priority over all other professional and social engagements, but obviously there are some contingencies which must take priority, such as court appearances, bereavement and the need for medical treatment.
You are entitled to fair notice of the hearing and if you believe that you have been given insufficient time to prepare your defence you should write in immediately to say so.
You should expect to be notified of the identities of the tribunal members. The purpose of this is simply to avoid the situation where you arrive at a hearing only to discover that a tribunal member is known to you or, worse, to the other side. Have no hesitation in writing to the regulator pointing out any connection which you believe should disqualify a tribunal member from sitting on your case.
You may be required to notify the tribunal of the names and addresses of the witness you propose to call at the hearing and, possibly, the nature of your defence and you should not expect to be able to call someone not on that list. But you have rights too. If you think that the regulator has information additional to that which has been served on you which you believe may be helpful in your defence you should ask to see it at once, otherwise it may be too late. If the regulator declines to provide it you have the right to ask the tribunal to direct him to do so, although he may argue that there are legal reasons why he should not. If anyone refuses to give evidence on your behalf you can inquire of the regulator whether it has power to compel his attendance.
In the most complex types of hearing you may be required to attend a pre-trial hearing of the tribunal or its chairman. The purpose of this is to deal with issues such as timetabling, disclosure of documents, admissibility of evidence and challenges to the validity of a charge. Such hearings usually call for the services of a lawyer.
What happens at the hearing?
Disciplinary tribunals are usually conducted in the same way as civil proceedings in the ordinary courts, but far less formally. You should expect to be provided in advance of the hearing with a note of the procedure; it's worth studying carefully.
Except in the case of a very few regulators, a disciplinary tribunal is not an inquisition; in other words the tribunal members leave it to the parties to produce the evidence and do not themselves often ask questions of witnesses except to clarify the answers they have given. The reason for this is that, as in the courts, it is the duty of the prosecutor to prove the defendant's guilt and it is not up to the defendant to prove his innocence. But how strongly does the prosecution case have to be proved? The answer to this will depend on the rules of the tribunal, but if the rules are silent the prosecution have to establish the defendant's guilt only on what is called the balance of probabilities, that is to say the tribunal have to be satisfied that the defendant is more likely to be guilty than innocent. However, a higher standard of proof may be called for if the accusation is a particularly grave one, for example if the misconduct constitutes a criminal offence.
Most disciplinary hearings are conducted in private, but a few are held in public. In some cases the hearings are normally held in private but the defendant has a right to have them held in public. You should be informed of the position beforehand, but if in doubt inquire of the regulator.
Unless the chairman of the tribunal is a lawyer it may be advised by a lawyer, sometimes called a legal assessor. The legal assessor may retire with the tribunal when it makes any decision, but you should always be told what advice he has given.
Often, the only evidence before the tribunal will be in the form of documents, though both sides have the right to call witnesses if they wish and the tribunal may be surprised if the defendant himself is unprepared to give evidence. Witnesses usually wait outside the room until they are called to give evidence; the object is to prevent them from tailoring what they have to say to what other witnesses have said. An exception is the expert witness. He is allowed to be present throughout the proceedings because he can only benefit from hearing the evidence. In the case of those tribunals in which an oath is administered to the witnesses it should be remembered that the giving of false testimony under oath can result in a prison sentence.
If one party's witness does give evidence to the tribunal the other party has the right to question, or cross-examine him as it is called.
After all the evidence has been read or heard and both sides have had the chance to sum up their case, the tribunal will, save in the most straightforward of issues, retire to consider their decision on guilt or innocence. They will usually announce the decision the same day, but may in more complex cases adjourn for a period to consider it further.
If you are found guilty of all or some of the charges you should expect to have the opportunity to address the tribunal further on the issue of what order or orders they should make. (The prosecution may have a similar right.) If you are not legally represented you should have made yourself familiar with the range of options available to the tribunal. In the worst situation, if the tribunal regards your misconduct as particularly serious, it may be considering a withdrawal of practising rights or other order which would effectively put you out of business. If the situation which led to the misconduct (insolvency, marital breakdown, drink or whatever) no longer obtains because you have taken or arranged for remedial treatment or action you should tell the tribunal and provide corroborative evidence. If your competence is in issue it would be helpful to be able to say that you have arranged to take an appropriate refresher course. You may in any event wish to tender letters from respected people indicating that your conduct was out of character or unlikely to be repeated and you should certainly tell the tribunal of any circumstances which would make any order particularly harsh on you or your family. Be prepared in other words for the worse.
If a financial penalty is imposed you are entitled to make representations as to how and when it should be paid, though do not expect it to be treated like a hire purchase agreement.
Should I appeal?
Most disciplinary schemes offer you a right of appeal to another tribunal against either a finding of guilt or an order of the tribunal. In some cases the appeal will take the form of a re-hearing, but in others it is confined to a review of how well the first hearing was conducted (largely a legal issue). The appeal is held before an entirely different tribunal, the appeal tribunal, often with a lawyer chairman. Tribunals which have been set up under an Act of Parliament sometimes have a built-in right of appeal to the Court.
As with the first hearing, you will have to take a view on whether the prospects of a successful appeal outweigh the risk of incurring further costs. If your appeal is successful you may be able to claim back your costs at both tribunals. The key document here is the tribunal's reasons. Save in the simplest types of hearing, you should expect to be provided on request with a written statement of the tribunal's reasons if they have ruled against you. (You may have to meet the costs of providing these.) Such reasons can sometimes reveal that the tribunal failed to apply the correct tests in the case or provide other good cause for appeal.
There will almost certainly be a time limit within which you are allowed to appeal, but some tribunals permit late appeals when new - and significant - evidence comes to light. If your regulator is what the law calls a public body, whether set up under an Act of Parliament or not, there may be an additional right of appeal to the ordinary courts of law. The procedure, which is known as judicial review, must be exercised promptly and in any event within three months of the decision, so, if you are considering this course, do not delay before consulting a solicitor.
What happens after the hearing?
Many professional and regulatory bodies publicize the results of disciplinary proceedings, sometimes at the first tribunal stage even if an appeal is pending. Exactly how they do this and whether you can affect the contents of the notice or not will depend entirely on the rules of the particular regulator. It is always worth asking to see and agree any statement in advance of publication.
It is unwise to ignore any tribunal order. Non-payment of a fine or costs order can result in a County Court judgment or even, in some organisations, automatic exclusion from membership or loss of regulatory authorisation.
The final piece of advice for anyone found guilty of misconduct who intends to continue practising or working in the same field is to treat the whole experience as a learning opportunity and to review their own conduct and the practices of their firm in light of the tribunal's criticism.