“Not all mistakes are misconduct”, says SDT as it clears solicitor

Signature: Solicitor made mistake

Not all mistakes made by solicitors are professional misconduct, the Solicitors Disciplinary Tribunal (SDT) has ruled in dismissing allegations that an assistant misled the court.

Louise Clair Johal filed and served a witness statement which her client had not signed, using instead the signature page from a version completed after the deadline set by the court.

Ms Johal, who at the time worked at listed firm Knights, admitted acting negligently but successfully argued that she had not breached the SRA principles.

“Not all mistakes made by solicitors would amount to a breach of the principles,” the SDT said.

Ms Johal, who qualified in 2004, lost her job as a result of what happened.

She was acting for property developer clients ‘Mr and Mrs M’ in a dispute with a joint venture partner.

The court had issued an unless order requiring them to server their witness evidence by 4pm on 18 February 2019.

The clients did not send their comments in time and so, shortly before the deadline, Ms Johal filed and served their unsigned statements with the court and other side. She did not inform her clients that she was going to do so.

Though she admitted this was wrong, she did not face allegations before the tribunal over this.

Two days later, Mr M returned his statements with a significant number of tracked changes. Eventually a draft was signed and Ms Johal then attached the signature page to the initial statements (V1) and filed and served it.

She said Mr M had given her express permission to remove any amendments that she considered unnecessary, and in the event she thought they all were.

However, when Mr M saw what had been filed, he was unhappy and complained. Knights fired her for gross misconduct the following month.

Ms Johal told the tribunal that she had been off ill until 15 February and only realised on 18 February that an unless order had been made.

When she understood that the statements had to be served by 4pm, she admitted to panicking and filing the unsigned statements so as to preserve her clients’ positions.

She added that she had not expected substantial amendments to the statements as there had been a lot of pre-action work. It turned out that Mr M had also made untracked changes.

The SDT found that the permission Mr M had given related only to those comments they had discussed.

“The tribunal found that Mr M believed that the statement he was signing, and therefore gave [Ms Johal] permission to file and serve, was the statement that included his untracked changes.”

Accordingly, the tribunal found that Mr M had not signed the statement Ms Johal had filed and served, and by transposing his signature from the statement he had signed, the solicitor misled the court and other side.

But the SDT accepted that she was not aware of the untracked changes. “She did not read the statement in its entirety; she only read and considered the tracked changes made.

“The tribunal accepted that [she] believed that rejecting the tracked changes would have resulted in a statement that was identical to V1. The tribunal found that [she] genuinely, but mistakenly, believed that the statement filed and served had been approved by Mr M.”

The SDT concluded that, whilst the mistake was “significant” and, as her advocate accepted, negligent, it did not amount to professional misconduct.

“In making a mistake, with nothing more, [Ms Johal] had not failed to uphold the rule of law and the administration of justice. [She] had not knowingly or recklessly misled the court.

“The tribunal did not find that [she] had transposed the signature in order to hide her inability to obtain a signed statement.”

She had not knowingly or recklessly misled the court: “The tribunal considered that a finding that [her] conduct was in breach of the principles would be setting an unrealistically high standard; not all mistakes made by solicitors would amount to a breach of the principles.”

The SDT made no order for costs, saying it had been reasonable for the Solicitors Regulation Authority to bring the case.

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