SDT: Solicitor acted dishonestly
A junior solicitor at the Solicitors Regulation Authority’s (SRA) external advisers Capsticks lied about losing documents she was working on while acting for the regulator in a data protection case.
Claire Louise Matthews has been struck off after trying to cover up the fact that she left them on a train, despite her evidence of how the incident exacerbated her mental health problems – to the point that she claimed she tried to kill herself as a result.
Born in 1988 and qualified in 2017, Ms Matthews joined Capsticks’ Birmingham office on 30 April 2018. She received training on information security and GDPR as part of her induction, and attended an information security annual refresher training workshop on 21 May.
Three days later, she was asked to draft a strike-out application which needed to be lodged the next day.
Capsticks was acting for the SRA in defending a claim that it had not discharged its obligations towards ‘Mr X’ under the Data Protection Act 1998 and had failed to deal with his subject access request.
Ms Matthews agreed to take the relevant documents home to work on and she was given a lockable briefcase to put them in. But she fell asleep on the train home and left it behind. It has never been found.
She said she held off reporting the briefcase’s loss for a week in the hope of recovering it, recognising that – given the subject matter of the claim – losing the documents would be “very damaging”.
Ms Matthews had 25 May booked off to move home and did not respond to a colleague’s repeated efforts to contact her about the application; eventually the colleague drafted it herself.
In January 2018, the solicitor had been signed off work with stress and anxiety, and she told the Solicitors Disciplinary Tribunal (SDT) that, when she realised she had lost the briefcase, she was overcome by “uncontrollable fear, anxiety and panic”, worrying that Mr X would make another claim against the SRA over her loss of his personal data.
The SDT recorded [1]: “The respondent said that she had little coherent recollection about the days immediately following the loss of the briefcase and she described the days after 24 May 2018 as the darkest of her life: she barely ate, slept or showered.
“The respondent said that she also drank alcohol to excess in order block out the event. At her lowest point, the respondent said that she had resorted to drinking bleach in an attempt to end her life.”
Her sister said in evidence that she was so concerned about Ms Matthews’ state of mind when she visited her during this period that she hid her balcony door key.
The SDT found that Ms Matthews had lacked integrity and acted dishonestly in lying to a colleague the following week by saying she had left the briefcase at home, and then to her supervisor by saying on 31 May that she had left it on the train that morning. She confessed what had really happened the following day.
The tribunal also found that the delay in reporting what had happened breached Capsticks’ information security policy, breaching her duty to maintain the trust the public placed in her and in the provision of legal services.
Neither she nor Capsticks reported it to the SRA; it was a complaint from Mr X that sparked the investigation.
In mitigation, Ms Matthews said this had been “a lesson learned” and, in the two years following the incident, she had “worked hard to improve her health and would now not react in such a way again”. She was now not working in the law but the events had “haunted” her.
Deciding on sanction, the SDT noted that leaving the briefcase on the train could have happened to anyone – it was her “poor choices” thereafter which were the problem.
It was clear from the evidence that Ms Matthews’ job would not have been at risk had she reported the loss at once, but waiting for a week had been too long.
There was no direct harm caused but the reputation of the profession had been damaged.
The question was whether her mental health issues constituted ‘exceptional circumstances’ such as to displace the usual decision to strike off in cases of dishonesty.
As it did in finding her dishonest, the SDT noted that she had not presented any formal evidence of her mental state at the time, but accepted that Ms Matthews had a history of experiencing periods of anxiety, stress and depression.
Prior to the incident, her health appeared to be “stable” but the loss of the briefcase had caused an upsurge of anxiety.
“However, in all the circumstances of this case the tribunal concluded that there was no evidence which allowed the tribunal to conclude that the respondent’s mental state was of such degree that would have caused her to be unaware of the facts or incapable of distinguishing between true and false, honesty and dishonesty, and the respondent chose to follow the most catastrophic path for her both personally and professionally.”
The character references provided on her behalf were “not sufficient to dislodge the clear conclusion that the respondent had been aware of her actions and had embarked upon a course of conduct with the intention of concealing from her employer the loss of the briefcase and the documents”.
The SDT concluded that “sadly” a strike-off was the only appropriate sanction for her “very serious” misconduct.
As Capsticks was conflicted out of handling the prosecution, City firm Fieldfisher was instructed, and the SRA sought costs of £55,000.
The SDT said the preparation costs were excessive and disproportionate, with “significant and unnecessary duplication of work”, while Fieldfisher’s hourly rates – £380 for a partner, £240 for an associate and £100 for a trainee – were too high. Capsticks charges £130 an hour as the SRA’s sole external solicitors.
The tribunal said the hourly rates claimed “effectively penalised the respondent for the conflict experienced by Capsticks and the SRA”.
It said that, had the case been prosecuted by Capsticks or in-house by the SRA, the costs would have been £18,000, and it reduced this to £10,000 given Ms Matthews’ limited means.
She has no assets and is working in a temporary job which pays £9 per hour, equating to a weekly wage of under £400.
During cross-examination, Ms Matthews said that, after she dismissed from Capsticks, her mental state deteriorated and she started to drink alcohol heavily again.
The impact of mental health on misconduct has been a major issue over the past two years, particularly in light of the High Court ruling in November 2018 [2] that pressure of work or extreme working conditions “cannot either alone or in conjunction with stress or depression” justify not striking off dishonest solicitors.