SDT: Pattern of conduct
A solicitor who backdated a document and sent a misleading email to a client has been struck off, despite evidence he was experiencing significant mental health difficulties at the time.
The Solicitors Disciplinary Tribunal (SDT) decided that the mitigation offered by Michael Carl Lillywhite did not amount to exceptional circumstances such as to order anything other than the usual sanction in cases of dishonesty.
Mr Lillywhite, who qualified in 2012, joined West Midlands firm George Green as a fixed-share private client partner in January 2023.
Working on a probate file that moved with him, in February he created and backdated the front page of a memorandum of appropriation – which had been executed that month – to give the false impression that it predated completion.
He told the SDT that he did not intend to mislead. He described himself as “not in a rational state of mind” and acting in panic and haste at the time.
He also said he believed no capital gains tax would ultimately be payable in the estate “and, in that sense, the [memorandum] became ‘merely for show’ to demonstrate to colleagues his competence in the legal discipline in which he was working”.
Separately, Mr Lillywhite sent another client a letter in late January enclosing a draft will. The client replied on 3 March stating that nothing had been received and providing his new address.
The solicitor then edited the will to insert the new address and emailed it to the client stating: “How strange, I have checked the details, and all seems to be fine.”
He explained that he had typed that sentence “off the top of my head” before checking the file, and did not revise it before sending the updated will.
“He accepted that, read now, the email would be misleading, but maintained that he did not intend to mislead the client,” the SDT recorded.
George Green dismissed Mr Lillywhite when his actions came to light and reported him to the Solicitors Regulation Authority.
- He told the SDT he had been diagnosed with depression and anxiety in 2019, received counselling and was on medication. He said the symptoms were at their worst in early 2023, which impaired his memory and judgment.
- He attributed the exacerbation of his symptoms to the career move and to a dispute with his former firm
- He said that he has since addressed his mental health issues, changed his medication and was now settled personally and professionally.
But the SDT found his actions were dishonest, lacked integrity and misled others.
The dishonesty with the memorandum was “not momentary”, it said. “It unfolded over a period of days, requiring deliberation and the execution of a number of steps rather than a single spontaneous act.”
On the email, the tribunal went on: “Although less serious in its potential consequences, it nevertheless involved the respondent knowingly sending a misleading email to a client which concealed an earlier error and created a false impression of what had occurred.
“The dishonest conduct occurred over a short period — a matter of minutes — but it was nonetheless deliberate.”
The fact that the two incidents happened so close together “demonstrated a pattern of conduct in which the respondent chose to conceal the true position rather than act with the candour and transparency required of a solicitor”.
It continued: “The tribunal accepted that there was no personal gain, no direct harm, and that the respondent was experiencing significant mental health difficulties at the time. In addition, it was noted that he had previously enjoyed an unblemished career and was of good character.
“However, when balanced against the nature, scope, and extent of the dishonesty in each instance, and the degree of culpability involved, the tribunal concluded that the mitigation advanced, whether taken individually or cumulatively, did not amount to exceptional circumstances.”
The SDT struck off Mr Lillywhite and ordered him to pay costs of £15,000.