The recent decision of the Divisional Court in the cases of SRA v James, Naylor & McGreggor has caused consternation amongst the profession, many of whose members can identify with the pressures that are faced by solicitors in private practice.
On appeal, the Court overturned the decisions of the SDT to suspend the solicitor respondents in all three cases which were the subject of one judgment. Two of the cases concerned solicitors who had been found to have misled clients, and in the case of Esteddar McGregor, failed to report misconduct by a colleague.
The common thread that runs through the cases is that the solicitors all claimed that they had been placed under unbearable pressure by their firms and that they had been too afraid to speak up or raise their concerns.
In the James case, Flaux LJ explicitly recognised that the treatment of this junior solicitor had been "abominable". Notwithstanding that scathing assessment, the court nevertheless went on to impose the heaviest sanction possible on all three appellants and struck them off the Roll, ordering them in addition to pay the SRA's costs.
The SRA's position is that there is no excuse for dishonesty, and further, that if dishonesty is proven, the solicitor should almost invariably be struck off whatever the allegedly mitigating circumstances.
The rationale for this is said to be the risk to the public in allowing such a person to continue in practice. Many solicitors, however, feel that now is the time for the Law Society to step in to protect members of the profession who find themselves the subject of prosecutions and draconian sanctions.
They argue that the no tolerance approach overlooks certain key factors, such as the effect that the prosecution itself has had on the solicitor's approach to re-offending, the mental health and wellbeing issues that are bound up with the sort of pressure to which these solicitors were said to have been subject and the measures that could be put in place to ensure that there would be no repetition of the misconduct. Such measures, it is suggested, could stop short of a career-ending strike-off.
These decisions may appear to mark a shift in the approach to sanctioning solicitors who are found to be guilty of serious errors of judgment amounting to dishonesty when suffering from extreme stress or even mental illness.
In the case of SRA v McKenzie in 2016, the SDT held that misconduct by a solicitor could in part be excused on grounds of illness. The SDT accepted that the Respondent had not appreciated the effect of his actions as a result. The SRA had alleged dishonesty against Mr McKenzie but had been persuaded to abandon this allegation before the final hearing. It had, however, pursued the allegation of lack of integrity, which was dismissed by the Tribunal.
Similarly, this year in SRA v Smith, the SDT approved an Agreed Outcome which allowed Mr Smith to continue to practice despite a suspension, subject to additional SRA supervision having accepted medical evidence to the effect that the Respondent had been suffering from a medical condition that had impaired his judgment.
The differentiating factors between the cases of Smith and McKenzie and the recent decision in James & ors, however, is that in James the SRA continued to allege dishonesty before the Tribunal. It appears for Respondents to reach Agreed Outcomes with the SRA more favourable than the sanction that is most frequently imposed following a finding of dishonesty, namely a strike-off, that the solicitor would have to persuade the SRA to withdraw the allegation of dishonesty altogether.
It could be argued that in fact there has been no shift in the approach taken by the Regulator in such situations and that a finding of dishonesty has always been a “red line “ issue for the SRA.
The effect of the recent cases, however, is clear. Any solicitor who is the subject of a finding of dishonesty cannot expect to be shown any leniency by the SDT or the courts and should instead expect to be struck off.
As a result it is vital that law firms continually examine their cultures and provide proper support to their fee earners at all levels. There is an obvious benefit to the firms themselves too, as they will be more likely to avoid the bad press associated with such prosecutions. For individual solicitors, the message is clear: the SRA will pursue suspected dishonesty vigorously and the SDT and the Courts are unlikely to be receptive to any arguments of mitigation.