Flaux: Pressure of work can excuse carelessness, not dishonesty
Pressure of work or extreme working conditions “cannot either alone or in conjunction with stress or depression” justify not striking off dishonest solicitors, the High Court has ruled.
Lord Justice Flaux said: “Pressure of work or of working conditions cannot ever justify dishonesty by a solicitor.”
He was ruling [1] on an appeal by the Solicitors Regulation Authority (SRA) against three decisions by the Solicitors Disciplinary Tribunal to find that ‘exceptional circumstances’ existed to displace the usual sanction of striking-off when dishonesty was involved.
Each solicitor was given a suspended suspension with conditions of their practising certificates.
Saying that all three should instead be struck off, Flaux LJ continued: “It may be that pressure of work or an aggressive, uncaring workplace could excuse carelessness by a solicitor or a lapse of concentration or making a mistake, but dishonesty of any kind is a completely different and more serious matter, involving conscious and deliberate wrongdoing, whether it is stealing from the client account or telling lies to the client (as in two of these cases) or assisting some else in a fraud (as in MacGregor).”
The most talked-about case was that of Sovani James, formerly a solicitor at national high street firm McMillan Williams, who was found to have backdated and forged documents.
But she escaped striking off for dishonesty [2], with the exceptional circumstances including her mental health issues caused by the pressure she was put under to meet billing targets.
Peter Naylor, then based at the corporate department of Bristol-based TLT, gave misleading information to a client about progress on a file. Though dishonesty was proved, he was not struck off [3], again with his mental health a major factor.
The third case was that of Esteddar Mariam Macgregor – the publication of whose case was embargoed until recently – who as managing partner and COLP of London firm Ziadies failed to report another partner’s systematic and gross over-claiming from the Legal Aid Agency and dishonestly helped cover it up out of personal loyalty to her colleague.
The tribunal found that all of the circumstances “placed her in a situation where she perceived unbearable pressure and this impacted on her well-being and functioning”.
Giving a ruling with which Mr Justice Jeremy Baker agreed, Flaux LJ said that in each case “the SDT both erred in principle and was wrong, in the sense that it made evaluative decisions which were outside the bounds of what it could properly and reasonably decide.
“Put another way, the sanction imposed was, in each case, unduly lenient and clearly inappropriate.”
Where the SDT has concluded that, notwithstanding any mental health issues or work-related pressures, a solicitor’s misconduct was dishonest, he said the weight to be attached to those issues in assessing the appropriate sanction “will inevitably be less than is to be attached to other aspects of the dishonesty found, such as the length of time for which it was perpetrated, whether it was repeated and the harm which it caused, all of which must be of more significance”.
Flaux LJ said that in each case, the SDT did not engage in such a balancing exercise. “Had it done so, it should have concluded that in none of these cases could the dishonesty be said to be momentary…
“I do not consider that, in cases of repeated dishonesty and misconduct of this kind, the lesser sanction of suspension (let alone suspended suspension) addresses the risk of harm to the public or the need to maintain the reputation of the profession.”
The judge also asserted that mental health issues, specifically stress and depression suffered by a solicitor as a consequence of work conditions or other matters, could not, “without more”, amount to exceptional circumstances.
To do otherwise would mean ‘exceptional circumstances’ was no longer be “a narrow residual category of case, but much more the norm”.
Flaux LJ said: “The SDT having concluded that, notwithstanding mental health issues, each of the respondents was dishonest, I consider that it was contrary to principle for it then to conclude that those mental health issues could amount to exceptional circumstances…
“Whilst in no sense belittling the stress and depression from which the respondents suffered, it was in no sense exceptional. It is sadly only too common for professionals to suffer such conditions because of pressure of work or the workplace or other, personal, circumstances.”
He said that this point was not altered by the fact that, in the James case, “the pressure on the respondent was caused in large part by a culture in the firm which was toxic and uncaring.
“That may provide an explanation for her dishonesty having occurred, but it cannot excuse it and, therefore, cannot amount to exceptional circumstances justifying a lesser sanction.”