Moorhead: Does a tactic being ‘common’ excuse it?
The Solicitors Disciplinary Tribunal (SDT) was wrong to find that an agricultural law solicitor who used a ‘common’ ruse to trick an opponent was not dishonest, a leading professional ethics academic has suggested.
Professor Richard Moorhead of Exeter Law School said the SDT did not seem to take into account that the solicitor had admitted to his client that the tactic was a “sharp practice” in considering whether he was dishonest.
Joel Woolf, a partner at Midlands law firm Wright Hassall, was suspended from practice for a year after trying to disguise a notice to quit in an effort to end an elderly farmer’s protected tenancy.
Mr Woolf admitted to his client that his tactic – which involved sending multiple letters that appeared identical but were not – amounted to a “spoof”, “trick”, “ruse” and “sharp practice”.
The solicitor denied acting dishonestly and the SDT agreed, on the grounds that, at the time of serving the notices, he genuinely believed he “was merely acting in accordance with established custom and standard practice in his field of agricultural law”, however unreasonable that belief may have been.
Mr Woolf admitted that he had acted with a lack of integrity and failed to uphold public trust.
Writing on his blog yesterday, Professor Moorhead argued that the SDT only held “one part of Woolf’s reasoning in their mind when considering dishonesty”, namely that serving multiple notices in the hope one would be missed was a common tactic.
“They do not hold in their minds his expressed view that they were disguising the notices, that it was a ruse, and it was sharp practice.
“And that the language of the covering letter looked to add to the problem by explicitly explaining why there were two letters in a way which was, in the SRA’s submission, and I agree, misleading.
“So what an ordinary decent person might think as to honesty in such circumstances is subject to more debate and doubt than the SDT seemed to think.”
The academic questioned whether the fact it was a common practice really excused an attempt to take advantage and misleading the farmer.
“Should the professional disciplinary tribunal require more independence of thought than it’s a common tactic so it must be okay? And is the common tactic changed by the laying on of an extra explanation to disguise the reasons for two letters?”
Professor Moorhead cited the dicta of Lord Justice Jackson in Wingate – the 2018 Court of Appeal ruling on the meaning of integrity on integrity for the purposes of solicitors’ disciplinary matters – as involving “more than mere honesty”.
Jackson LJ said a solicitor conducting negotiations “will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse”.
Professor Moorhead noted that the SDT did not reference this in Mr Woolf’s case.
He concluded: “What we have here is a solicitor being particularly careful to engage in a ruse, a disguise, with a lack of integrity, in a way that takes unfair advantage, and which was also conceded as having not upheld [the SRA principle of] ‘public trust and confidence in the solicitors and firms we authorise’.
“And yet the tribunal appears willing to say the (apparently) unreasonable belief that a supposedly common practice must be technically correct ‘if not cricket’, is sufficient for an ordinary member of the public to believe that would not mean it was not dishonest.”
This sort of practice is abhorrent but normal. Beggars belief. Would it have made a difference if it was a solicitor being misdirected by a colleague. Get your act together SDT