Posted by Dan Bindman, Associate Editor of Legal Futures
When part of your job entails writing up disciplinary tribunal judgments and court cases involving lawyers who have made serious mistakes – or worse, committed crimes – it is easy to imagine a profession riddled with incompetence and corruption. But it is far from that.
Such news stories are easily accessible for journalists now the internet makes disciplinary findings so easy to obtain, and they are always well read.
Of course, solicitors – and barristers – are in reality a very honest, law-abiding bunch, as they should be. All but a tiny handful carry out their duties with absolute propriety and never stray from compliance with numerous professional rules, or break the law.
The rules which lawyers are bound to observe go far beyond standards of conduct expected of most occupations and the criminal law. They have evolved to elevate the profession, and provide reassurance to people and businesses that entrust their cash and livelihoods to legal professionals.
Whether disciplinary prosecutions should be judged to a civil or criminal standard of proof has been a matter of hot dispute. The hierarchy of offences has also been debated. Unsurprisingly, a massive survey by the Solicitors Regulation Authority (SRA) found consensus that the misuse of client money, criminal activities and/or dishonesty were seen as the most serious offences.
The Solicitors Disciplinary Tribunal (SDT) is fond of repeating the words of Coulson J in Solicitors Regulation Authority v Shanna  EWHC 2022 Admin, who said: “There is harm to the public every time a solicitor behaves dishonestly. It is in the public interest to ensure that, as it was put in Bolton [v Law Society, the main authority in such cases], a solicitor can be ‘trusted to the ends of the earth’.”
The statistics suggest they can be trusted. While government general crime figures show that, in 2016, there were 182 prisoners per 100,000 head of population, there were some 136,000 practising solicitors but just 76 were struck off, one given an indefinite suspension, 19 given a fixed suspension, and 51 fined.
The rate of disciplinary offending has stayed fairly constant too. A decade earlier, in 2006, 63 solicitors were struck off and altogether fewer than 105,000 had practising certificates.
That said, some solicitors do breach the trust put in them and, anecdotally, there has been an uplift in recent years in the number who falsify documents, sometimes to cover up small but consequential errors that are difficult to admit to clients or colleagues.
A trawl of Legal Futures stories – not a comprehensive archive, although we invariably catch the most serious misconduct – shows that in the year between 31 August 2016 and 1 September 2017, at least nine solicitors were struck off for dishonestly backdating or fabricating documents. Two were not struck off; one due to ‘exceptional circumstances’, and the second escaped with a £2,000 fine after a quick admission.
In the previous 12 months, at least 10 were struck off for the offence.
Time and again, cases have come up where backdated documents have been inserted into the file, fake invoices have been recorded, or even naked forgeries have been created in the process of a serious theft, or covering up a professional breach or omission.
Perpetrators may be young and inexperienced, or mature and operating at a high level in their firms. They could have long, unblemished careers until that point. What may have started as a simple lapse of memory can end in an elaborate cover-up.
The sooner a solicitor holds up his or her hands, shows insight into the misconduct, and demonstrates this was a ‘moment of madness’ brought about by great stress or – preferably, if the individual wants to practise again – a proven mental illness, the more likely they are to escape without a career-ending sanction.
If there is in fact a rise in the number of these deceitful acts, what might explain it?
It is hard to say. Informally, the SRA acknowledges there is a discrete problem and is looking into the matter. It stresses that solicitors should come clean at the earliest opportunity, confident they will be dealt with humanely and proportionately.
A spokesman emphasises the difference between the severity of a breach and covering it up. Even though the impact of the breach on a client may be minor, the dishonesty of a cover-up escalates the matter into near-certain strike-off.
He added that the SRA’s planned simplification of the Handbook should remove some of the technical breaches that can lead to cover-ups. For example, a practitioner in a rural area who found it hard to comply with rules requiring a firm to bank client cheques within 48 hours would in future not be held to such a precise standard.
Recent changes to practice have exacerbated the likelihood of falsifications being discovered. Unlike the old days, when there was no digital trail and letters could be slipped into a file invisibly, the crime is more easily detectable now.
One barrister who has defended solicitors at the SDT said he suspected that better auditing systems within firms, and – since 2011 – tighter reporting obligations on solicitors, were responsible for more such cases coming to light.
Since then, employers have had no choice but to report on employees, or commit misconduct themselves. Now there is virtually no option to apply a slap on the wrist and keep matters in-house.
But equally there is also little incentive for employers to reveal to the SRA the full horror of the pressurised working environment they created.
Invited to speculate on why experienced lawyers might risk their careers and reputations by such lapses of judgement – maybe after decades of advising clients how to conduct themselves properly – one senior solicitor blamed ageing and failing faculties leading older solicitors to make mistakes.
For younger lawyers, it is more likely to be the demands of a heavy workload. A former senior prosecutor before the SDT is sympathetic to the position of young solicitors who, under pressure, commit “momentary folly”. The SRA is quick to throw the book at them, he says.
Lawyers today increasingly have to practice in an unforgiving commercial climate, while also abiding by tough professional rules they can expect to be applied without mercy if they err. The margins for error are narrowly drawn.
As the former prosecutor warns: “A moment’s panic can terminate a career in the law.”