Punishment enough?
There should be clearer obligations on regulators to notify the most serious failures of lawyers, writes Jean-Yves Gilg
Four hundred hours. That's the time former solicitor Christopher Greenman effectively billed for dealing with a deceased client's probate. The fee amounted to £90,000 for an estate valued at just under £371,000. That's a lot more than the 3 per cent agreed when the will was drawn up. Nine times as much. Last week, the Solicitors Disciplinary Tribunal found that the amount was excessive for what was a relatively simple matter, and that Greenman knew it. The 49-year-old was struck off for dishonesty.
At the time of the event, Greenman had been qualified for just over ten years and he had a 'previously unblemished record'. But leniency is a rare currency at the SDT. A stain-free professional career helps but it is by no means a get-out-of-jail-free card '“ and rightly so.
Philanthropic aspirations don't usually help much either. In an agreed outcome with the Solicitors Regulation Authority, validated by the SDT last month, Lynne Muscroft accepted being struck off for topping up clients' personal injury awards in cases settled at lower levels than she had anticipated. She had put her hands up early on in the proceedings, did not personally benefit, and did not seek to rely on any exceptional circumstances other than 'a misguided attempt to conclude cases to the satisfaction of clients and the firm'.
As to extreme stress at work or in one's personal life, that's also unlikely to be of much use on its own. The SDT expressed compassion for Noel Sedgley, a solicitor approaching retirement age who had turned to gambling and had used client money to feed his sudden addiction. Strike-off was unavoidable, perversely, because Sedgley had repaid almost all the money, which showed, the tribunal said, that he knew his conduct was dishonest. The only recent example where stress was considered was the case of Naomi Duxbury-Tetley, last week, who had provided convincing medical evidence. This was combined with a number of other mitigating factors and the tribunal made clear that this outcome was exceptional.
Denying allegations in the face of evidence to the contrary doesn't usually go down well either, as in the case of the family solicitor who denied fabricating backdated letters to cover up her lack of progress on more than 40 cases. Likewise, Greenman's decision not to admit the allegations and his claim that the prosecution was 'frivolous' were not looked on kindly by the SDT where witness evidence was against him.
The SRA had imposed conditions on his practising certificate after the sole practitioner's firm closed down in 2012. He could not practise as a solicitor unsupervised or handle client or firm money, and he was required to inform his employer about these conditions. At the time of the ruling, Greenman was employed by JS Law, an organisation regulated by the Council for Licensed Conveyancers. A few days after the ruling, he was still listed on JS Law's website as a 'conveyancer' '“ which doesn't mean that he is a 'licensed' conveyancer.
Now that he is off the roll, however, all his obligations as an SRA-regulated professional have fallen away. There is no longer an obligation on him to tell his employer. Everybody deserves a second chance, and so does Greenman. But the tribunal was damning about his conduct and made a finding of dishonesty. The former solicitor had diminished the public's trust not just in the solicitor profession but in 'the provision of legal services'. The latter appears to be a growing concern at the tribunal.
At present, SDT rulings are not binding on other frontline regulators. A memorandum of understanding between regulators merely provides for the sharing of information. According to the SRA, this is working satisfactorily in the current framework. The CLC has signed up to the memorandum and says that if it is made aware that an organisation it regulates is looking to employ a solicitor who has been struck off, it usually seeks assurances from that organisation that this will not pose an unacceptable risk to clients.
The question was perhaps less relevant before the Legal Services Act, but in an increasingly liberalised market, damage to reputation at one end of the sector potentially affects all lawyers. Making SDT rulings binding on all regulators would be going too far. Being struck off as a solicitor is punishment enough. Some doors should be left open. But for the sake of client protection and in the interest of the profession, there should be a clearer obligation to notify the most serious findings and for all regulators to undertake due diligence as a matter of course.
