SDT: Hearing on dishonesty not proportionate
A managing partner who fabricated a client-care letter and backdated it has been suspended for 12 months, after an allegation of dishonesty was dropped.
In an unusual move, the Solicitors Disciplinary Tribunal (SDT) said although dishonesty “remained a triable issue” in the case, it would not be proportionate to insist on a hearing to determine it when both Jonathan Peter Durkin and the Solicitors Regulation Authority (SRA) accepted that his misconduct had been serious.
The SDT rejected an initial proposal from the SRA and Mr Durkin that he be suspended for three months and invited them to negotiate a more “substantial” period, which they did.
A statement of agreed facts and outcome, approved by the SDT, said Mr Durkin, who qualified in 2012, was the managing partner of the Liverpool office of Prosperity Law at the time.
Mr Durkin acted for ‘Client A’ in a partnership dispute and issued proceedings; “at no time” was a client care letter or terms of business mentioned.
He failed to serve a witness statement on behalf of Client A in line with court directions and his application for relief from sanctions was dismissed. Client A settled the claim and agreed to pay the defendant’s costs.
Client A then instructed another law firm to bring a professional negligence action and Mr Durkin supplied the client file at its request.
He later admitted to his colleagues at Prosperity that he had included in the file a client-care letter and terms of business that he had produced after the event “as he had wanted to make the file look as good as it could when it was disclosed”.
He was reported to the SRA and demoted from his position as managing partner of the Liverpool office.
Mr Durkin admitted acting with a lack of integrity and recklessly but denied dishonesty. His counsel argued that his actions constituted “an attempt to recreate something he genuinely believed had previously existed on the file”.
If the tribunal accepted this, the SRA said, such conduct would not constitute dishonesty. Given the solicitor’s admissions, a three-months suspension was “proportionate”.
The SDT said it initially rejected the agreed outcome after “expressing difficulty in understanding how the backdating of a document could be anything other than dishonest”.
However, it was persuaded “on balance, that it would not be proportionate to insist on a substantive hearing to determine this discrete issue when the parties accepted that the misconduct had been serious in nature and degree”.
The SDT granted leave for the SRA to withdraw the dishonesty allegation.
It noted there had been no actual loss to or impact on Client A, though the misconduct had “undoubtedly harmed the reputation of the legal profession”.
In mitigation not agreed by the SRA, Mr Durkin said that at the time of the misconduct he was “stressed, overworked and had personal issues”. He described it as a “lapse of judgement and an isolated incident”.
He was also ordered to pay costs of £25,000.
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