Young solicitors who find themselves in toxic work environments cannot “leave their professional ethical compass at home” and ultimately have to walk away, the president of the Solicitors Disciplinary Tribunal (SDT) has said.
But Ed Nally stressed the importance of their employers facing action too.
There has been growing disquiet of late about disciplinary cases involving young solicitors finding themselves under extreme pressure from their employers and performing dishonest acts as a result.
In an interview with Legal Futures, Mr Nally said the question facing the tribunal in cases like this was where to draw the “red line”.
He explained: “There are many people who are working in unattractive environments where bosses are putting people under pressure or behaving shabbily towards them, or perhaps behaving in a very improper way and encouraging them to do things that they shouldn’t be doing.
“[But] if you leave your professional ethical compass at home, you’re going to be in trouble.”
He said such solicitors “have to have the courage, as difficult as that may sound”, to walk away or seek redress from their regulator or an employment tribunal.
“What I would say about those types of cases is that if, hypothetically, we have a young solicitor before the tribunal who has alleged to have done certain things, and part and parcel of the answer that the respondent offers is that my employer has caused me to do this or they did that or they procured this to happen, then there is a heavy responsibility on the SRA to look at the control mechanisms, the environment, the superior management government structures of the firm or the entity concerned and see whether there’s accountability there.
“The only way you’ll actually treat appropriately and protect the junior end of the profession is to make sure that you hold to account the senior end when they preside over an entity that allows that to happen.”
Solicitors in these situations often argue that the pressure took a toll on their mental health, and certainly the tribunal has recognised the issue in its rulings in recent years.
This has informed the SDT’s support for the idea of the SRA introducing a non-disciplinary ‘fitness to practise’ regime, which is provided for in the Legal Services Act 2007 but has not yet been activated.
Mr Nally said the range of sanctions the SDT could impose was not always the right answer for a “certain category” of solicitor, such as those who “perhaps are suffering from mental health issues that they themselves don’t recognise”.
He continued: “At the end of the day if somebody is suffering from serious mental health issues that are impairing their performance so badly that they’re inflicting damage to the consumers of legal services, they cannot be allowed to continue to practise in that state.”
But it was “quite a just proposition” to say there was a different way to deal with this type of solicitor, Mr Nally said, especially as the disciplinary process itself could make things worse.
The 63-year-old former Law Society president, who continues to practise as a consultant at Bolton firm Fieldings Porter – where he was senior partner – stressed that he and his colleagues did not sit in an ivory tower when faced with issues like this.
The tribunal is made up of practising solicitors and “professional and experienced” lay members, “so we do get the pressures, stresses and strains”, he said.
“We’re not automatons and we don’t expect any of the people who are before us to have been automatons. We will forgive stupid errors that can be interpreted correctly as following the right side of the comfort line.”
Indeed, he said, the frontline experience of solicitor members was one of the reasons Mr Nally and his colleagues rejected the SRA’s call to move to lay majorities on the three-person tribunal benches.
This interview will continue tomorrow. Ed Nally is speaking at the Legal Futures Regulation and Compliance Conference on 6 June. Click here for details and tickets.