The Solicitors Disciplinary Tribunal (SDT) has activated a suspended suspension for the first time, after a solicitor revealed he had breached a disciplinary order in the course of applying to have it varied.
Michael David Schwartz, who was admitted in 1979, had been suspended by the SDT last September for five years for accounts rule breaches.
The suspension was suspended and conditions imposed, with the threat of the suspension being activated acting as a “deterrent against future misconduct”.
The solicitor wrote to the tribunal two months later asking for it to vary the restriction that he seek Solicitors Regulation Authority (SRA) approval before he could work as a solicitor.
He argued the condition was punitive for a freelance criminal solicitor who needed to work at short notice.
The tribunal declined, saying it was “not unusual or intended to be punitive or oppressive”. It pointed out that the condition only applied to work as a solicitor and “did not affect… work outside the profession”.
However, in the course of the application, under cross-examination Mr Schwartz revealed that he had breached the order within five days of it being made by appearing in the magistrates’ court on the instruction of Birmingham firm, Toussaints, without SRA approval. He admitted it had been “silly and stupid” of him.
The tribunal responded: “It may be that the [SRA] would pursue the apparent dishonesty and lack of integrity which had been displayed in the course of this application and [Mr Schwartz’s] evidence.” But it said the SRA would have to apply separately to activate the suspension.
This it did and in the latest hearing last month, the SRA submitted that the intended deterrent effect had not worked. Further, it said Mr Schwartz had lied both to the regulator and the tribunal “in an attempt to cover up that breach, with his admissions only being extracted under cross-examination”.
The SRA noted that this was the first time the tribunal had been asked to activate a suspended suspension. It argued that if this matter did not lead to activation of the suspension, it was hard to envisage when it would.
In mitigation, among other things Mr Schwarz argued that the suspension order was “somewhat harsh” because dishonesty had not been proved, and that the sanction imposed on him was sufficient to protect the public.
He asked for compassion to be shown to him and said that after almost 40 years of practice he “could not imagine life without being able to work as a solicitor”.
He added that he had expected the SRA to rubber stamp three applications made by firms to employ him, but to date it had not approved any of them, meaning he could not practise – which he submitted was not the original tribunal’s intention.
In its decision, the tribunal recorded it was “satisfied that [Mr Schwartz] had deliberately flouted a restriction of which he was aware, just five days after it was imposed”. It was a “serious breach, which showed a cavalier disregard for the order”.
It concluded “it was not in the public interest for solicitors to act where they were not permitted to do so”.
It noted Mr Schwarz’s submission with regard to his commitment to the profession, but observed: “Sadly, that commitment had not extended to complying with a reasonable and proper order made by the tribunal on behalf of the profession and the public.”
The tribunal expressed concern that testimonials about Mr Schwartz were written in the present tense, as if he “had been working throughout the months since the September 2016 hearing”.
Activating the original suspension from practice of five years from 9 September 2016, the tribunal said it was an appropriate sanction, given that the solicitor had “consciously flouted the tribunal’s order, and displayed an inability or unwillingness to act within a regulated profession”.
Mr Schwartz was ordered to pay £2,250 in costs.