16 October 2012
High Court backs SRA bid to increase suspension of solicitor to a strike-off
High Court: message needed to be sent
The High Court has struck off a solicitor who was only suspended by the Solicitors Disciplinary Tribunal (SDT).
The Solicitors Regulation Authority (SRA) appealed the October 2009 decision to suspend Millard Decal Spence for three years, even though the SDT had found him to have acted dishonestly.
Mr Spence had set up his own practice in July 2007, but in September 2007 his professional indemnity insurance ran out. His practising certificate was subsequently cancelled by the SRA following non-payment of the fee for 2007-8. The SRA intervened in his practice in July 2008.
The tribunal found Mr Spence guilty of making dishonest and misleading statements to the SRA, including informing the SRA he was at home rather than acting as an advocate in a criminal case when his firm was inspected in February 2008. It also found that Mr Spence had continued to practise without a practising certificate or professional indemnity insurance, failed to contact the SRA investigators, failed to comply with the SRA’s accounts rules and failed to pay the insurance fee for the assigned risks pool.
The SRA argued at the High Court that the suspension was unduly lenient as the case did not fall within the category of exceptional cases where a finding of dishonesty did not warrant a solicitor being struck off. Mr Spence, who represented himself, said suspension was far from a mild sanction and that it was for the tribunal to decide the sanction.
According to the Lawtel report, the High Court said it understood why the SDT did not regard it to be the most serious case of dishonesty, but that the tribunal had appeared to treat the repeated lies to the SRA as a less culpable form of dishonesty than misappropriating client funds (which was not alleged here) – but in this, it was wrong.
The court added that it was difficult to see a higher risk to the interests of Mr Spence’s clients than the effect of him continuing to practise without insurance or a certificate.
The court decided the tribunal had erred in law. This was a case of calculated dishonesty and investigators were entitled to expect cooperation and honesty. It added that to send the right message required the ultimate sanction, and therefore struck Mr Spence off.
SRA executive director David Middleton said: “It was important to bring the appeal against the SDT’s decision in this case to maintain the principle that a finding of dishonesty will almost invariably indicate that a solicitor is a risk to the public and therefore that strike-off is the appropriate order to be made. We do not believe that substantial fining powers are a substitute for strike off when the risk to the public is substantial.
“As the High Court said, practising without a PC or insurance exposed his clients to an enormous risk, and during our investigations, Mr Spence repeatedly lied to us and persuaded another solicitor to lie to us too. This is not how solicitors should behave.”
By Legal Futures
Tags: Solicitors Disciplinary Tribunal, Solicitors Regulation Authority
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