Solicitors Regulation Authority v Spence [2012] EWHC 2977 (Admin)

The Administrative Court has overturned a decision by the Solicitors Disciplinary Tribunal (SDT) to suspend a solicitor, S, who admitted repeatedly making dishonest statements to the Solicitors Regulation Authority (SRA). The court substituted the SDT's decision to suspend S for three years with an order for S to be struck off and, in so doing, expressly rejected the suggestion that lying to the SRA was less culpable than misappropriating clients' funds.

S admitted the factual basis of the allegations brought against him in the SDT which included:

  • telling the SRA that he had professional indemnity insurance cover when he did not
  • telling the SRA that he was at home arranging for a loan when in fact he was at court representing a client (at a time when he did not have a current practising certificate)
  • telling the SRA that another solicitor had taken over his caseload and that he had not practised as a solicitor for some time, when both statements were untrue.

The SRA alleged that this conduct had been dishonest. S denied that he had been dishonest but accepted that he had taken a conscious decision to present a misleading picture to the SRA.

The SDT, applying Solicitors Regulation Authority v Sharma ([2010] EWHC 2022), identified 'exceptional circumstances' and concluded that this was one of the 'small residuary category' of cases where striking off would be disproportionate in all the circumstances. It took account of the fact that:

  • S had been under considerable personal and financial pressure
  • S had been trying to protect the livelihoods of his staff and the interests of his clients and that no clients had been placed at risk other than 'in regulatory matters such as lack of professional indemnity insurance and practising certificates'
  • S had not profited personally in any way and ultimately lost his practice
  • S was a dedicated solicitor who worked in a difficult part of Birmingham and in a highly pressured area of law where remuneration was not always very high
  • S had produced two good references and was of previous good character.

The court did not agree that these were exceptional factors. In his judgment, Mr Justice Foskett stated that there had been calculated dishonesty over at least a couple of months and this conduct required the tribunal to strike S off.

Pitchford LJ stated that the SDT had erred by appearing to treat repeated lies to the SRA as a less culpable form of dishonesty than dishonesty in relation to clients' money. The purpose of the lies had been to enable S to continue to practise without professional indemnity insurance and it was difficult to think of a greater risk to clients. He also rejected the treatment of the respondent's personal mitigation as justification for failing to strike him off, noting that none of the pressures in S's personal and professional life was exceptional.