SDT: Lack of experience not a mitigating factor
A newly qualified solicitor who “falsely recorded time across a number of files” to show his law firm that he was meeting his billing target has been struck off by Solicitors Disciplinary Tribunal (SDT).
Matthew Nester denied acting dishonestly and said it had always been his intention to complete the work for which he had recorded time.
The tribunal heard that Mr Nester, admitted in July 2021, was dismissed by national law firm Hugh James and reported to the Solicitors Regulation Authority (SRA) only six months later.
He was found to have created, over four days in January 2022, time records which were “inaccurate, misleading and in excess of the time actually spent”.
They had allowed him to meet his time-recording target of six and a half hours.
Mr Nester, who admitted acting with a lack of integrity and failing to act in a way that upheld public trust and confidence, told the tribunal that his home was “chaotic” at the time of the misconduct.
It recounted: “There was a national lockdown in Wales. His wife and three children were all at home. At the time he did not have a designated working space in his home and so was working in a communal area, where he was constantly disturbed by his children and his pet dog.
“As a result, he was unable to work efficiently and had been unable to be as productive as he ordinarily was.”
The tribunal heard that a partner at Hugh James noticed, when reviewing a closed file in January 2022, that Mr Nester had recorded 30 minutes of time for a ‘quarterly file review’ on 4 January.
The partner “thought that this was unusual because, firstly, the file was closed and secondly, it was not part of Mr Nester’s role to conduct quarterly file reviews”.
At a meeting with Mr Nester on 10 January, the partner explained that an email about file reviews had been aimed at supervisors and line managers and asked Mr Nester to send him the file supervision checklist.
Mr Nester did this but the partner noticed not only that the document had been created on 10 January and that the firm-wide email about file reviews had been sent the day after Mr Nester’s review.
The partner then ran a time-recording report for Mr Nester and contacted the firm’s HR department. It emerged that the solicitor had incorrectly recorded four and a half hours of work on 4 January and three hours on 5 January, on a total of 14 separate client files.
Mr Nester admitted incorrectly recording a further hour of work on 7 January which “had not been carried out at all”, and over-recording some work by up to half an hour the day before.
While the tribunal “did not doubt that Mr Nester intended to undertake that work on some future date”, it did not accept that when creating the time records, Mr Nester “genuinely believed that it was permissible to record time for work that he had not done”.
The SDT disagreed with the SRA that “clients could have potentially been charged for the work he had undertaken” because time recorded for administrative work would not have been charged.
However, “ordinary and reasonable people would consider that a solicitor who fabricated time on a file, in order to make his employer believe that he had done more work than he actually had, was dishonest”.
His misconduct was “motivated by his desire to evidence to the firm that he was working effectively and achieving his daily time recorded hours as expected of him”.
His actions were planned and repeated across a number of files. Although he was newly qualified at the time, his lack of experience was “not a mitigating factor”
“All solicitors, irrespective of their experience, knew that it was improper to record time for work that had not been performed.”
The SRA applied for £8,000 in costs, but having heard evidence that Mr Nester was unemployed, with dependent children, “a significant amount of debt” and no assets, the tribunal made no order for costs.