Does the decision in the Solicitors Regulation Authority (SRA) and Savani James mark the beginning of a more nuanced approach to findings of dishonesty?
Sovani James, a junior solicitor, was recently sentenced by the Solicitors Disciplinary Tribunal (SDT) for six charges of failing to act with integrity having missed the deadline in a particular piece of litigation and then having taken deliberate steps to cover it up. Ms James admitted having lied to both her former employer and the vulnerable client concerned, over a 17-month period, in order to perpetrate a cover-up of her original error. The Tribunal found that Ms James had backdated four letters in a further attempt to hide what had happened.
The Tribunal unhesitatingly found that all of the alleged misconduct amounted to dishonesty (in the Ivey subjective sense) but did not strike off Ms James’ name from the roll.
In mitigation, Miss James advanced evidence and arguments that exposed the negative culture at the firm. This culture ultimately resulted in a loss of confidence in her abilities and led to stress and anxiety, created mental health problems and affected her ability to work. Miss James called evidence from erstwhile colleagues and from a consultant psychiatrist who gave unchallenged evidence that the circumstances in which she was working led to a loss of concentration and diminished cognitive function arising out of a depressive disorder. The psychiatrist categorised Miss James as having being vulnerable at the time.
The Tribunal found beyond reasonable doubt that the firm had been a challenging place to work and that the pressure suffered by management was passed down to the junior fee earning team who “must have felt like they were carrying the weight of the world on their junior shoulders”. They noted the publication of chargeable-hour league tables as being particularly inappropriate. They went on to unhesitatingly accept that Miss James had been “terrified” when working at the firm, due to the pressure and lack of support from senior management. It concluded beyond reasonable doubt that the pressures of the working environment coupled with Miss James’ experience of not having followed an instruction on a file previously (leading to her manager questioning if she was in the right career), led her to backdate the letters, lie to clients and her employer. Ultimately the Panel acceded to Miss James’ representative’s suggestion that (following a recitation of all the usual authorities in relation to dishonesty) Miss James’ case was capable of being described as exceptional.
The Panel noted the following relevant features:
- The motivation for Miss James’ conduct was fear of the consequences of management discovering her wrongdoing. They noted no financial motivation save for the preservation of her employment;
- The deception and the dishonesty were not calculated. They noted that one lie had led to another (although she had concealed her wrongdoing repeatedly);
- The harm caused by the deception was considerable, and inflicted on a vulnerable member of the public and in respect on which the distrust in the minds of the public, might then spread to the profession more widely;
- Miss James’ personal circumstances (not detailed in the judgment) and her ill-health in the midst of significant emotional turmoil meant that her world view at the time was skewed;
- Miss James’ good character and her genuine insight. They did note that she did not take steps herself to make good the loss though;
- The culture of the firm: in addition to there being no management support they found the management to be oppressive and aggressive, instilling fear and terror into the Respondent, describing the workplace environment as being “toxic”;
- They gave considerable weight to the consultant psychiatrist’s report and his opinion that Miss James’ depression and anxiety were a feature of the dishonest conduct and the length of time over which it perpetuated;
- The root cause of Miss James’ conduct was a combination of the culture of the firm in terms of the pressures placed on junior solicitors and her mental ill-health arising from pressures at work combined with her personal circumstances, her relative youth and inexperience; all of which created a “perfect storm”;
- Miss James had learned from her mistakes: they occurred over three years ago and she had been working and complying with the conditions on her Practising Certificate since then.
The Panel imposed a two year suspension order itself suspended for three years subject to a restriction order.
Whilst it is always possible that a Disciplinary Tribunal will determine that any particular set of facts can properly be described as amounting to exceptional circumstances, the cases in which it has chosen to so do are few and far between.
The first question that this judgment raises is why the SRA did not bring proceedings against the firm for creating the culture of fear which the SDT found Miss James to have worked in. There were a number of examples given by Miss James during the course of her evidence of inappropriate and oppressive management; on one occasion she was sent a letter with respect to her chargeable time having not met budget; the Committee found letter to have been “written with the intention to frighten her into compliance and that the suggestion to work long hours in the evenings and at weekends and in holidays to make up that time … amounted to hectoring of a junior employee”. It may well have been that the nature and extent of the “toxic” culture at the firm did not emerge until the case in mitigation was put. Given the outcome of this case, SRA are likely to look more closely at the firm when similar cases arise in the future. Many firms operate robust procedures to encourage financial performance. This case highlights the reputation risks that such procedures entail. Next time, the firm may also be the subject of proceedings before the SDT.
Time for a health jurisdiction?
It was not contested by the SRA that Miss James was suffering from a mental health condition at the time of the events giving rise to the charges. This judgment raises the question of whether the SRA and the SDT ought to have available to them a health jurisdiction, to deal with solicitors whose conduct is largely or wholly attributable to mental or physical ill-health. There exists a statutory jurisdiction to make health rules but to date, no apparent appetite to use it.
This judgment appears to represent a more nuanced and human approach by the SDT, in which they were willing to take account of the personal circumstances of the solicitor appearing before them. It was however quite an extreme set of circumstances that led to the ‘perfect storm’ of events as described by the Panel above.
Whether this decision will be appealed by the SRA or will be later distinguished as being a decision ‘on its own facts’, I am pleased that the Tribunal took the opportunity to made a particular point in the judgment, reminding the management of law firms to be more alert to warning signs concerning mental health. Mental health is no longer taboo in the way it once was. Management of law firms must ensure that employees feel confident to seek the support they need.