Solicitor applies to vary disciplinary condition – and admits he’s already breached it

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20 January 2017

SDT: regulator may wish to pursue dishonesty charges

A solicitor who applied to vary a condition on his practising certificate made when a disciplinary tribunal suspended a five-year suspension from practice, now instead faces the possibility of having the ban activated after it emerged during his application that he had breached the condition.

The Solicitors Disciplinary Tribunal (SDT) last month rejected the application by criminal law solicitor Michael Schwartz, who in September was given the suspended sentence for accounts rules breaches.

He wrote to the tribunal two months later, asking it to vary the condition that he needed Solicitors Regulation Authority (SRA) approval before he could work as a solicitor.

In his application, Mr Schwartz claimed he had been unable to work for three months, was therefore impoverished, and that the restrictions on him were punitive because as a freelance criminal solicitor he needed to work at short notice.

He said three firms had applied for permission to employ him, but the SRA had not dealt with those applications. He also asserted that the likelihood of further misconduct was low.

The tribunal said it could only vary a condition if satisfied that there was a change of circumstances or the passage of time meant that it was no longer appropriate. That was not the case here. The condition would not be varied simply to suit Mr Schwartz’s “personal convenience”.

The tribunal concluded that the condition requiring the SRA’s approval 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”.

Further, the solicitor submitted a witness statement on the day of the hearing, admitting that he had breached the condition by appearing in court five days after the tribunal decision in September.

He claimed in the statement not to know whether the order it made was active, but admitted during cross-examination that this was incorrect.

The SDT said: “[He] knew, when he attended court on 14 September 2016, that he was breaching the order made by the tribunal, just five days earlier. It was a matter of great concern that the [Mr Schwartz] had given two different accounts about this on the same day.

“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.”

Mr Schwartz admitted it had “been silly and stupid” of him to work without permission and accepted that his witness statement had wrongly claimed he had not known that he could not work.

The SRA said if it had known before the hearing that a condition had been breached, “it would have made an application to lift the suspension of the period of suspension”. It invited the tribunal to activate the suspension immediately of its own motion.

But the tribunal declined to do this because, while on its face there was “merit” in such an application, it would “not be appropriate to determine that application on this occasion, without a formal application to which the respondent could respond, given the significant consequences of immediate activation of the suspension”.

A costs order of £1,985 was made against Mr Schwartz.

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