The Solicitors Regulation Authority (SRA) is to appeal to the High Court over the sanction imposed by the Solicitors Disciplinary Tribunal (SDT) in a ground-breaking ruling last month on mental health and dishonesty, Legal Futures can reveal.
The case involved fabricating and backdating documents, which is becoming increasingly common misconduct and is being dealt with in very different ways by the regulator depending on the circumstances.
Sovani James, formerly a solicitor at national high street firm McMillan Williams, escaped striking off for dishonesty on the grounds of ‘exceptional circumstances’, which included her mental health issues caused by the pressure she was put under to meet billing targets.
Instead she received a two-year suspension, itself suspended for three years, and conditions on her practising certificate.
The approach taken by the tribunal has been followed this month by two similar rulings involving commercial lawyers – Peter Naylor, then based at the corporate department of Bristol-based TLT, and Daniel Smith, a former associate at Eversheds.
In Mr Naylor’s case dishonesty was proved, but the allegation was withdrawn in Mr Smith’s. The solicitors were not struck off because of exceptional circumstances, including their mental health.
As we reported earlier this week, Mr Naylor received a suspended suspension, with practising restrictions and a requirement to send the SRA six-monthly medical reports on his mental health and fitness to practice.
In the case of Mr Smith, the regulator accepted confidential medical evidence on the state of his mental health and, in an agreed outcome, withdrew a charge of dishonesty and replaced it with lack of integrity.
Mr Smith admitted creating a backdated email, forwarding a copy of it to senior members of the firm and providing a “misleading response in emails he sent to queries raised in respect of the backdated email”.
The SDT said the solicitor “had direct control over the circumstances that gave rise to the misconduct, although his actions of fabricating a holding response and forwarding on such fabricated email occurred over just one day and did not represent a course of conduct.”
The tribunal approved the sanctions proposed in Mr Smith’s agreement with the SRA, namely that he should receive a suspended suspension, conditions on his practising certificate and a requirement to submit half-yearly medical reports on his mental health and fitness to practise to the SRA.
Research by Legal Futures showed that shows that between 31 August 2016 and 1 September 2017, at least nine solicitors were struck off for dishonestly backdating or fabricating documents.
A further two were not struck off, one of them due to ‘exceptional circumstances’ relating to the pressure he was under at work, while the second escaped with a £2,000 fine after admitting his misconduct within hours.
Only last month a three-year qualified solicitor, Kate Louise Sanderson, was struck off for dishonestly fabricating documents to cover up the fact she failed to negotiate an increase in after-the-event insurance cover.
Ms Sanderson, who worked at Manchester-based personal injury firm Express Solicitors, denied fabricating policy schedules. However, she did not claim to be suffering from mental health problems.
Just this week, the SRA issued a rebuke and £1,750 fine to solicitor Imtiaz Patel, who at the time was employed by Bolton firm Ford Legal, meaning he will not be sent to the SDT.
Mr Patel was found to have created and backdated a letter to mislead another solicitor that he had complied with a court order and to seek an agreement to re-instate his client’s claim.
The circumstances behind this were not set out in the SRA’s decision notice.
In the James case, the SDT said awareness of mental health issues had grown, particularly over the past five years, and law firm managers should be “more alert to the warning signs”.
The tribunal also suggested that law firms provide staff suffering from mental health problems access to external counsellors.
Separately, the SRA has confirmed that it is to appeal the SDT ruling that cleared the firm and three of its solicitors over allegations relating to the al-Sweady inquiry into British soldiers’ conduct in Iraq.
Very unusually, the SDT issued a majority ruling in the case.
The SRA has also been in the High Court this week to appeal the decision not to strike off Ian Farrimond, who was jailed for the attempted murder of his wife while suffering from severe depression but handed an indefinite suspension by the SDT due to the “wholly exceptional” circumstances of his case.
NOTE: The original version of this article incorrectly stated that Daniel Smith had been found to be dishonest. It also said that the dishonesty allegation had been withdrawn. We have corrected it to make clear that there was no finding of dishonesty against Mr Smith.