Gideon Habel, Partner and Head of the Regulatory & Disciplinary department, examines the SRA’s approach to mental health in light of the case against his client Claire Matthews
Last month, the High Court allowed an appeal brought by our client, Claire Matthews, a junior solicitor found guilty of dishonesty and struck off the Roll by the Solicitors Disciplinary Tribunal (SDT) in March last year.
The result means Claire will now get a full re-hearing of the allegations found proven against her. Whereas in the hearings last year Claire was unrepresented, this time, she will have a legal team to help her prepare her case and we look forward to continuing our work for Claire in the new hearings.
While the outcome of the Solicitors Regulation Authority’s (SRA) case against her is, therefore, yet to be determined, the attention Claire’s cause has attracted has already had a significant impact on the profession and the SRA, in particular in how it goes about prosecuting junior solicitors, particularly where mental ill-health may be a factor in the case.
Here, I look at some of the indicators of that impact but also explain why I believe that these changes alone aren’t enough to address the systemic unfairness – especially for junior solicitors – in the regulatory process.
The first hearings and the profession’s response to the SDT’s decision
The case centred on how Claire explained to her employer, Capsticks LLP, the loss on a train of a locked suitcase containing client documents. The SDT found she had been dishonest in explaining matters and, finding there to be no exceptional circumstances that might justify another punishment, struck her from the Roll.
The SRA’s handling of the case against Claire and the outcome before the SDT caused consternation in sections of the legal community resulting in a “hunt” to find her in time for her to lodge and appeal – and leading to her instructing Leigh Day to act for her in that appeal. We have done so pro bono.
The concerns with the case, shared by many lawyers, included those as to the potential role played in events by the relationship between Capsticks – her employer – and the SRA. When it comes to understanding its relationship with the SRA, Capsticks is not just another law firm: it is the SRA’s retained firm for disciplinary investigations and SDT proceedings. What is more, in this instance, the SRA was also the client whose documents were locked inside the suitcase that Claire – a newly qualified solicitor subject to SRA regulation – lost. A further quirk of the case noted by commentators was that, despite Capsticks dismissing Claire for gross misconduct as a result of the events, Capsticks opted not to make a formal report to the SRA about that same conduct, despite prevailing duties at the time that ostensibly required them do so.
Most saliently, however, the consternation related to the decision to strike Claire off the Roll when she was not only unrepresented but where she had also raised mental ill-health as being relevant to the events and this had not then been followed up by the SRA or the SDT.
It was this outcry and the “hunt” that ensued that led to Claire contacting Leigh Day and her counsel team – Mary O’Rourke QC, Mark Harries QC and Rosalind Scott-Bell – becoming instructed to assist her, all acting pro bono.
The Grounds of Appeal in Claire’s case revolved, primarily, around two of the key (and related) factors about the proceedings before the SDT. Firstly, that, although her mental health was raised as an issue in the proceedings, neither the SRA nor the SDT took steps to enable her mental health to be investigated despite powers to do so being available to both. Secondly, that Claire was unrepresented in those proceedings and was, therefore, solely responsible for preparing and presenting her case in circumstances in which: her mental health had been raised as an issue; the SDT was charged with determining the case which would have direct consequences for her professional position (and rights protected by the ECHR; the SRA is a public interest regulator; and where both bodies are subject to the Equality Act.
It was at the core of Claire’s case on appeal that the combination of these aspects – and the consequent lack of expert medical evidence available to the tribunal – led the SDT into error in reaching its findings against her.
Having lodged Claire’s appeal, the team’s key first step was to obtain the expert evidence that was missing from the first tribunal proceedings. It is that evidence that has, ultimately, resulted in the SRA conceding that the case be remitted for rehearing. From that agreed position, the parties then, unusually, were in a position to invite the Court to approve the case’s remission to the SDT, which it duly did.
Claire’s appeal was, therefore, allowed by consent – without the SRA conceding any of the Grounds of Appeal or the Court determining their merits – but the outcome is unquestionably a victory for Claire. It results both in her being restored to the Roll and a fresh hearing of the allegations on which the SDT found against her with a legal team primed to assist her.
The impact of Claire’s appeal: a change in tack?
The conduct of the appeal itself has, in my view, already had a significant impact on the way professional disciplinary proceedings involving the SRA are – and will, in the future, be – conducted.
Firstly, it has shone a light on some of the vagaries in the SRA’s approach to disciplinary action against junior solicitors. These have been of considerable concern to many, at least since the cases of SRA v James & others in 2018. Those cases dealt with issues of dishonesty, mental ill-health and toxic work cultures. In each case, the SDT found the solicitor to have acted dishonestly but, given the circumstances, opted not to strike the solicitor from the Roll. The SRA appealed those sanctions to the High Court, which replaced the lesser sanctions with strike-offs.
More specifically, it has caused the SRA to engage publicly with the Junior Lawyers Division of The Law Society (the JLD) in response to concerns it raised in the aftermath of Claire’s case last year. In August 2020, the SRA then published new guidance specifically addressing its approach to cases in which ill-health is raised as an issue. The policy speaks of taking a “consistent, fair and proportionate approach when health issues are raised.”
It may be that, as well as new guidance, Claire’s case has brought about a change in approach, already observable in practice, by the SRA and, perhaps, the SDT: in a case widely-reported in the legal press in October 2020, the SRA brought allegations of dishonesty against a different junior solicitor. In her defence, the solicitor presented medical evidence relevant to her actions. The tribunal found her, too, to have been dishonest but then, relying on the medical evidence available, imposed a suspension rather than a strike off. In what might appear a change of tack from the days of SRA v James, the SRA chose not to appeal that sanction.
There is, however, a key distinction between Claire’s and the more recent case. In the latter, the solicitor was represented before the SDT by a leading silk and could afford to instruct a medical expert to assist the tribunal. It may, therefore, be overly simplistic – and wishful thinking – to hope that, in an instant, both the SRA and SDT have changed tack. Rather, and depressingly, it once more appears that available resources effectively made the difference.
The impact of Claire’s appeal: highlighting inequality of arms and the need for systemic change
Which brings me to the second aspect in which I believe Claire’s case has already had a significant impact on how SRA investigations and proceedings will be conducted going forward. As a junior solicitor without assets to fall back on or insurance that might help her, Claire found herself unable to afford legal representation in the proceedings. Combined with the mental health fragilities Claire continued to face, this left her in a very precarious position when defending her livelihood and reputation before the tribunal.
This sort of inequality of arms is not unusual in the SDT or indeed in the SRA’s investigations that precede prosecution before the tribunal. It is an issue that has been of considerable concern to my team since the early days of our work successfully defending Leigh Day and our colleagues against a high-profile SRA prosecution and appeal. That defence was itself heavily reliant on insurance cover of the sort usually available only to firms, partners and compliance officers.
Moreover, it is, in my view, an oddity of the SDT that there so often appears to be an assumption that, because those respondents coming before it are (almost exclusively) solicitors, they must therefore be adequately qualified and expert to represent themselves effectively in what are, on any view, highly specialised proceedings. That is simply not the case, although it is only fair to note that this is an assumption erroneously made by solicitors themselves as much as by the SDT and the SRA.
This gross inequality and its consequences – as played out in Claire’s own case – demands a solution that would enable all solicitors, if they ever had to answer to the SRA, access to the expert advice in doing so. Ensuring respondents are properly resourced to defend themselves and their hard-earned careers against allegations – and to instruct medical experts where appropriate – can surely only help to improve the quality of the regulatory process, from the earliest stages of the SRA’s investigative work to a decision before the SDT. It is up to the profession and stakeholders to take up the challenge on making this a reality – it is a challenge in which my team is committed to playing its part.
Whilst the outcome of Claire’s case remains to be determined by the SDT, her bravery in fighting to clear her name through her successful appeal to the High Court – despite the attention that has come with that – has, therefore, in my view, already served a considerable purpose to the benefit of the wider profession.
In pursuing her case in the face of considerable outside interest, Claire has reignited and significantly progressed the debate about how the SRA and the SDT engage with questions of health in the context of professional disciplinary proceedings. She has also shone a much-needed light on the importance of effective representation in SDT proceedings as a means of avoiding the personal travesty of unjust outcomes meaning the end of promising careers, particularly with respect to junior solicitors. It is our collective responsibility to ensure that this is not, however, the end of the journey where this is concerned, and that issues of ill-health and effective representation continue to be given proper priority where, in very many cases, the outcome can be determinative of someone’s right to continue in their chosen profession.