The Solicitors Disciplinary Tribunal (SDT) has fined a solicitor £5,000 for misconduct after he sent inappropriate texts to a vulnerable client who was the victim of domestic abuse.
But three out of four charges brought against him by the Solicitors Regulation Authority (SRA) were dismissed at the three-day hearing in March, and the authority’s handling of the case led the tribunal to slash its claimed costs of over £47,000 to just £3,500.
In the course of its judgment, the tribunal laid down best practice for communications between solicitors and clients, including the need to avoid bad language or being patronising.
The SDT found that Andrew Mark Lee, who was born in 1968 and admitted in 1992, and was employed as an associate at Liverpool firm Gregory Abrams Davidson, had “crossed the line from being supportive and friendly to flirtatious”.
In his written statement, Mr Lee argued that in domestic violence cases it was often necessary to be approachable and to support the client by “commenting positively” so as to counter “denigration from their ex-partners”.
The SRA alleged the solicitor had made inappropriate comments, and/or had made inappropriate physical contact, had sent inappropriate text and/or ‘WhatsApp’ messages, and/or had improperly accessed a Facebook profile account without consent. Each allegation related to “a vulnerable female client”.
The tribunal dismissed three of the allegations but upheld one: that he had sent inappropriate text and/or WhatsApp messages.
The tribunal was shown transcripts of more than 50 texts exchanged between Mr Lee and Ms SS. It found that at the material time, in 2013, she had been a vulnerable client. It also found that misconduct had been proved in relation to inappropriate messages sent in a six-day period from 3 October 2013.
Reviewing the content of these messages, the tribunal recorded that several were variously “of great concern”, “made for uncomfortable reading” , or were “troubling”, and caused it “considerable unease”.
For instance, one text sent by Mr Lee read: “I am full of admiration for you. Just wanted you to know that you’re wonderful xx”.
The tribunal said: “This was clearly beyond the bounds of appropriate comments to make to a client in this position… If, as the respondent maintained, he had simply meant to be supportive, [he] could have composed some suitable wording; as it was, his choice of words was troubling.”
Another text read “Don’t you dare do yourself down. You can be a right glamour puss when you want to be! xx.”
The tribunal found that “over the course of the week, the messages became more inappropriate”, and the frequency of the messages was “inappropriate, whatever the content”.
It concluded: “It could not be said that all of the communications were inappropriate. Also, it may have appeared to the respondent that Ms SS was a willing participant in the exchanges. Whatever the cause, the respondent’s communications crossed the line from being supportive and friendly to flirtatious.”
It continued: “Ms SS was a vulnerable client at the time, whose case involved delicate and upsetting material. The respondent was an experienced solicitor [who] had used his position to get apparently affectionate responses from Ms SS [and] could and should have recognised that it was for him to stop the inappropriate exchanges, not for Ms SS to speak up and complain.”
Deciding that Mr Lee had beached the SRA Principles 4 (act in the best interests of clients) and 6 (maintain public trust), and Outcome O(1.1) (treat clients fairly), the tribunal said: “The public would expect a solicitor to maintain a professional distance from vulnerable clients, to avoid any risk of misunderstanding let alone any risk of exploitation.”
But it acknowledged there had been “no specific loss to be made good”, that “no dishonesty or criminal conduct” was involved, the misconduct was “not deliberate or calculated but rather arose from… misjudgement” and had taken place “over a short period, against a background where he believed that he had a good relationship with Ms SS”, and that Ms SS’s case had not been harmed.
Mr Lee had “shown genuine insight into his misconduct” and had been dismissed from his firm, so his career had been “substantially damaged”.
More generally, the tribunal said it accepted that text communications “were now a normal method of communication and that they were not as formal as emails or letters. However, solicitors needed to be aware that their duties of professionalism applied in informal communications just as much as when writing a letter. The solicitor would need to consider how the communication would be viewed by a third party, as well as by the recipient”.
It added: “This case demonstrated the need for solicitors to avoid any dealings with clients which were or could be viewed as inappropriate. Solicitors ought generally to avoid the use of bad language unless it was clearly necessary. Whilst good communication with clients might well include avoiding formal language, there was no need to adopt the sort of crude language used in this case.
“Solicitors should also beware of patronising clients by suggesting there was any need to ‘go down’ to their level. Whilst many clients might benefit from being treated in a friendly and informal way others, including victims of domestic violence, might benefit more from being treated respectfully.”
Fining Mr Lee £5,000, the tribunal recorded that “the respondent’s culpability and the risk of harm caused by his misconduct, coupled with the fact that two breaches of the Principles had been proved, meant that a greater sanction than a reprimand was required. There was, however, no need to interfere with the respondent’s ability to practise in order either to protect the public or the reputation of the profession”.
The SRA submitted costs totalling over £47,000. However, the tribunal was highly critical of the failure of the SRA to take “proper and full” witness statements in the case and said the prosecution had been “poorly brought”. Statements it relied upon “lacked any narrative coherence or detail”.
In order to “signal its disapproval of the way this case had been prosecuted”, the tribunal reduced the costs payable by Mr Lee by 50%. It had already decided he was liable for one quarter of the overall reasonable costs because three out of four allegations had been dismissed.