To the ends of the earth: reappraising trust in the profession
In the post-LSA professional environment, rehabilitation rather than automatic strike off might be a more appropriate way of dealing with low-level dishonesty, suggests Susanna Heley
Solicitors who are sanctioned by the Solicitors Disciplinary Tribunal have an automatic right of appeal to the High Court.
Similarly, the SRA has a right to appeal without needing the permission of either the SDT or the High Court.
This unfettered right of appeal has meant that the High Court has been called upon to adjudicate cases which might not otherwise have come before it.
The extent to which High Court decisions have created precedent has led to a rather rigid approach to certain issues in relation to which the hands of the SDT have been firmly and repeatedly tied again and again.
The obvious immediate example is the question of dishonesty – particularly in relation to the recent controversial case of Emily Scott.
But the High Court has also issued decisions which have had a material impact on the approach to costs, breaches of the accounts rules, integrity, admissibility of character evidence and the approach the SDT should adopt in itself determining appeals from decisions of the SRA.
For those not in the know, Emily Scott was a trainee solicitor when she was asked by her employers to be complicit in faking a file to be submitted to the Legal Ombudsman.
She did as she was asked, completed her training contract and reported her former firm to the SRA once she had a new role.
She was struck off by the SDT earlier this year for her role in creating and submitting the fake file despite being a whistleblower.
Her case has attracted both sympathy and concern as to the protections available for vulnerable trainees and junior lawyers in general and for whistleblowers in particular.
In fairness to the SDT, it was in a rather invidious position following the joined High Court cases of Sovani James and others last year, in which the High Court firmly reiterated the position that a finding of dishonesty should result in a strike off absent exceptional circumstances.
That decision was the subject of criticism for the suggestion that there was nothing exceptional about solicitors working under extremely stressful conditions.
To have imposed any other sanction on Emily Scott would, on the face of it, have been glaringly inconsistent with the High Court decision in the Sovani James case.
When one compares the jurisdiction of the SDT as it works in practice with its own rules of procedure and statutory framework and powers, the extent to which decisions of, initially, the Master of the Rolls and, more recently, the High Court have restructured regulation of the profession starts to become apparent.
The requirement, for example, that there should be exceptional circumstances to justify a sanction other than a strike off in proven cases of dishonesty is not founded in statute; it is a direct consequence of successive Master of the Rolls and High Court decisions, most notably the seminal cases of Bolton and Salsbury.
Similarly the requirement that a former solicitor struck off for dishonesty should not be re admitted is a legacy of the ratio in Bolton and, in particular, the expectation that solicitors should be “trusted to the ends of the earth”.
Despite the advent of the Legal Services Act 2007 and societal and cultural changes since Bolton was decided in 1993, that rationale continues to reign supreme and lies at the very heart of the decisions in the cases of Sovani James and Emily Scott.
It is also, understandably, a key consideration in the SRA’s decision making process as to whether to pursue disciplinary proceedings at all and – should matters get that far – in deciding whether to pursue an appeal against decisions of the SDT considered to be too lenient and capable of undermining the Bolton rationale.
Although, considered as a concept, there can be no serious objection to the principle that solicitors should be capable of being trusted to the ends of the earth, the application of the principle in requiring a virtually automatic strike off where dishonesty is found and its practical results do not always sit well with today’s understanding of mental health issues and stress in the workplace.
One must also question how well that approach fits with the change in approaches to both regulation and practice over the last 25 years and whether, in fact, the mechanism of an automatic strike off as a means for maintaining such trust remains as much in the public interest as it was back in 1993.
It may be argued that factors such as the rise of the incorporated practice with its attendant compliance regimes, the obligation for all firms to appoint a COLP and a COFA, the massive increase in the number of solicitors on the roll, the increased ability to monitor accounts and files electronically through case management systems and electronic time recording, the stress caused by modern work practices and the risk such stress poses to mental health, all combine to point to an outcome in which the risk posed by certain types of low level dishonesty is not what it was once perceived to be.
Justice and compassion
Taken with the massive increase in the ways in which those with solicitorial skills can practice within the unregulated parts of the legal services industry, might it be suggested that strike off is actually contrary to the public interest where there is a clear indication that the solicitor in question has learned their lesson?
To toss them out of the profession as we have been wont to do is simply to set them loose in the unregulated sector with a feeling of having been badly done by and potentially having lost faith in the justice of the system.
To allow for rehabilitation, perhaps subject to close oversight may well prove to be a better option more suited to the ways in which solicitors now practise.
Justice tempered with compassion would, one hopes, reinforce the best values of the profession whilst maintaining protection of the public.
Is it better, for example, for a dishonest solicitor to resume practice immediately after being struck off as (say) an unregulated paid Mckenzie friend, practising in largely the same way they did as a solicitor but without any regulatory protection for their clients?
There is not an easy answer to these issues. The outcry attaching to the Sovani James decision and the recent Emily Scott case – both cases involving junior lawyers found to have acted dishonestly under pressure – tends to indicate that perhaps the profession ought to revisit the rigidity with which these issues are approached.
For my part, I would consider that a profession which is to be trusted to the ends of the earth ought to be trusted to take care of the health and wellbeing of its own members as an inherent part of that trust.
That is not to say that dishonest solicitors should be treated lightly or simply let off the hook.
I would rather suggest that it is time to shelve the requirement for “exceptional circumstances” as an excessive and unnecessary fetter on the SDT’s discretion and instead trust the SDT to review all of the circumstances of the case, the nature, extent and cause of any dishonesty and any available evidence of rehabilitation and to assess – as other professions may – whether the respondent solicitor is capable in future of maintaining the standards required of a solicitor notwithstanding the findings made against them.
Susanna Heley is a partner at RadcliffesLeBrasseur rlb-law.com