Dishonest Solicitors Exposed To Poor Working Conditions Struck Off By High Court
A High Court ruling has found that adverse work pressures cannot be a legitimate excuse for solicitors making dishonest decisions.
Lord Justice Flaux said: “Pressure of work or of working conditions cannot ever justify dishonesty by a solicitor.”
“It may be that pressure of work or an aggressive, uncaring workplace could excuse carelessness by a solicitor or a lapse of concentration or making a mistake, but dishonesty of any kind is a completely different and more serious matter, involving conscious and deliberate wrongdoing, whether it is stealing from the client account or telling lies to the client (as in two of these cases) or assisting some else in a fraud (as in MacGregor).”
The first and possibly most notable case concerns 35-year-old junior solicitor, Sovani James. Whilst working at South East firm McMillan Williams, she backdated four letters to make it look as if she had made progress with a clinical negligence case. Her deception lasted 17 months and was attributed to the firm’s unjust work expectations placed on her.
Peter Naylor sent five misleading and ultimately dishonest emails to a corporate client to delay dealing with his client and offer himself more time.
Failing to report her colleague’s misconduct before helping him conceal the evidence, Esteddar Macgregor was viewed as dishonest in her actions, despite the pressure she received from her close friend and acquaintance.
It is thought that if the SRA had used its ‘fitness to practise’ rules within these firms, the wider issue of working conditions would be addressed and more firms could be held accountable for the unfair stress they place on their staff.
Section 31 of the Solicitors Act 1974 empowers the SRA to make rules “for regulating in respect of any matter the professional practice, conduct, fitness to practise and discipline of solicitors.” Additionally, the ‘fitness to practise’ provision was added by the Legal Services Act 2007 over ten years ago but has never been used by the SRA.
Paul Bennett, Partner in the Shrewsbury office of Aaron & Partners, commented: “this change in effect creates a health jurisdiction for solicitors akin to those in healthcare disciplinary jurisdictions at the discretion of the SRA.
“There is now an enormous credibility test for the SRA to address the statutory provisions and to ensure that as a profession we do not discriminate against those with any physical or mental impairment.
“The Legal Services Act 2007 is now over 10 years old and the statutory opportunity to support those encountering ill health has not yet been taken by the SRA.
“It must be hoped that mental health campaigners, charities and the Law Society will now get behind a campaign to ensure the SRA adopts fitness to practise rules, raise awareness of the health issues across the profession and to create a supportive environment to protect the public and promote good mental health practice across the profession.”
Iain Miller, Legal Regulation Partner at London firm Kingsley Napley, said: “The ruling serves to highlight the need for a system to deal with health, including mental health, outside a disciplinary process.”
“Otherwise, as happened here, cases will be run solely through the prism of disciplinary concepts such as dishonesty which are not appropriate for dealing with the underlying issues.
“The Legal Services Act gave the SRA the power to implement such a system over 10 years ago and it is in the interests of the public and the profession that they do so.”
Nigel Wallis, a legal services specialist partner at Liverpool law firm O’Connors, said: “the SRA did not need to make any further rules about fitness to practice.
“The rules are already clearly set out in the SRA Principles with which every solicitor must comply if he or she wishes to practice. The obligation to adhere to these principles is what sets qualified solicitors apart from non-qualified legal advisers and this distinction will become increasingly important as the legal landscape evolves.
“Clients need to know that, in return for engaging a qualified solicitor, the solicitor must abide by a set of professional rules, with material consequences for any failure to do so. This is the foundation stone of the solicitor brand.”
However, a spokesperson at Legal Care claimed that responsibility should move beyond the role of regulatory bodies, with a firm’s health and wellbeing procedures amended to ensure the persistent health of all legal service professionals.
Legal Care commented: These cases demonstrate why everyone in the legal community needs to take the mental health and wellbeing of lawyers seriously. The consequences of not doing so can lead to careers being destroyed and the reputation of the profession damaged.
“Mental health in the legal workplace is a leadership responsibility. We call on leaders from across the community – from regulation, education, professional bodies and practice – to work with each other and LawCare to develop best practice to improve the working culture in the law. We need to take a careful look at how we educate and train lawyers about mental health and wellbeing and prepare them for practice, every lawyer coming into the profession should understand that there may be a time in their career when they may struggle, and know where to get help. We need to pay particular attention to the needs of junior lawyers for supervision and support with making the transition into practice.
“We know that the long working hours and competitive culture in the legal profession can lead to poor mental health, affect decision-making and lead to mistakes being made. Lawyers are often perfectionists and find it very hard to admit mistakes for fear of being seen as weak.
“The working environment in many law firms and chambers does not support a culture where lawyers feel able to tell colleagues they have made a mistake. We must do something about this, as the consequences of not admitting mistakes or trying to resolve them can lead to the end of your career.
“No lawyer should be working in an environment where they are struggling with the pressures of work and are fearful or anxious about talking to colleagues about it.”
Are you aware of any legal service professional working in adverse and stressful conditions? Does your firm consider the health and wellbeing of its staff? What should be done to protect these workers in the future?