Solicitor told trainee to draft misleading defence to barrister’s fee claim

SDT: Very serious misconduct

A solicitor who told a trainee to draft an “incorrect and misleading” defence to an unpaid fees claim from a barrister has been fined £7,500.

The trainee told the Solicitors Disciplinary Tribunal (SDT) that Paul Jerome Fitton had given her “oral instructions” to draft the defence, which stated that the sum claimed was owed to the barrister by the client when in fact it was owed by the firm.

The tribunal heard that the trainee signed the defence and the statement of truth and sent them to the court. Mr Fitton later admitted she was “not at fault”.

The defence was later struck out by His Honour Judge Roberts, who told Mr Fitton: “How disgraceful, then, that you, as an officer of the court, file a defence when there is no defence.”

In an agreed outcome with Mr Fitton, approved by the SDT, the Solicitors Regulation Authority (SRA) said the solicitor, admitted in 2013, was employed by McHale & Co Solicitors at Altrincham, Greater Manchester.

Mr Fitton instructed CS, a barrister, on a matter under terms of business that required McHale to settle their invoice within 30 days, whether or not the firm had been put in funds by the client.

The invoice for £2,160 went unpaid for a year before CS issued a claim against the firm for non-payment.

In its defence, filed in mid-June 2019, the firm said the money was owed by the client, which had not responded to requests for payment. McHale said it intended to apply to add the client as a defendant.

Within hours, CS’s solicitor told Mr Fitton that, in his view the defence “potentially amounts to misleading the court and a breach of the SRA code of conduct” because the contract was between CS and McHale.

Some days later, Mr Fitton acknowledged that the defence was inaccurate “insofar as it states that we are not indebted to your client”.

But he did not correct the record until he filed a witness statement in mid-November, four days before CS’s application to strike out the defence.

In it, he said: “The purpose of filing and serving the defence was to avoid judgment being entered against the defendant.

“If judgment was entered against the defendant, it would have had a very negative effect upon the defendant’s credit rating which, in turn may have resulted in the defendant’s bank facilities being affected which could have resulted, or contributed to the loss of jobs. In hindsight, I should have entered an admission.”

HHJ Roberts ordered the law firm to pay the sum claimed and full costs.

In non-agreed mitigation, Mr Fitton said he offered his “genuine and sincere apology” and argued that he had informed CS’s solicitors by email in June 2019 that the application to strike out would not be contested, “thereby admitting and acknowledging the inaccuracy of the document”.

The SDT said described Mr Fitton’s misconduct as “very serious”. He had “misled the court when he should have been very clear that the firm, rather than the client” was liable for the barrister’s fees.

“The respondent failed to remedy the position when the matter was raised with him and had involved a trainee solicitor with the matter.

“The conduct undermined trust in the profession. In mitigation, there was no allegation that the respondent acted with a lack of integrity or dishonestly, and he had made full admissions.”

The solicitor was fined £7,500 and ordered to pay £10,000 costs.

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