Solicitors disciplinary issues – behind the headlines, what is really going on at the Tribunal?
The last couple of months of 2019 saw solicitors disciplinary issues hit the headlines in the mainstream media, notably the Ryan Beckwith and Gary Senior cases (SRA v Ryan Beckwith [07.10.19] and SRA v Gary Senior), but also cases relating to the drafting of non disclosure agreements (NDAs) for companies associated with Harvey Weinstein and the alleged misrepresentation of financial information by a lateral hire partner. The outcome of the Beckwith case is known, the Senior case is ongoing and the latter two cases are adjourned until next year. The Solicitors Regulation Authority (SRA) has also indicated that it is pursuing many prosecutions - rumoured to be up to 100 – relating to allegations of lack of integrity relating to sexual misconduct.
But, away from the headlines, has the diet of the Solicitors Disciplinary Tribunal (SDT) significantly changed? Is it still the same sort of issues which attract regulatory sanction?
An answer to this question lies in a review of judgments handed down by the SDT since August 2019. Perhaps unsurprisingly, given that such judgments will reflect prosecutions commenced some years previously, the prevalence remains the same: client money breaches in one form or another, misleading clients or overcharging/funding issues.
Categorisation in this way is not binary, as often overcharging cases will also involve client money breaches, but the general picture (with some outliers) is apparent from the following table.
It is the “Other” category above which perhaps reveals how the SDT prosecution profile may change: one matter relates to allegations of sexual misconduct, another to an associate misleading his firm about the attendance at a course and the third dishonest expenses claims by a partner. The latter two cases involved very well known and respected US firms.
The misconduct case, SRA v Gerard John Scott [14.08.19] (Scott), involved allegations which have become very familiar; alcohol fuelled conduct leading to unwanted advances (on two occasions) by a senior male to a junior female member of staff which was aggravated by intimidatory text messages. Admissions were made which resulted in findings of a lack of integrity (Principle 2) and action which did not maintain public trust in the profession (Principle 6). An 18 month suspension from practice was ordered following the respondent’s genuine insight and remorse.
In SRA v Michael William Freeman [04.09.19] (Freeman), a junior associate was enrolled to sit a Certificate of Proficiency in Insolvency (CPI) exam, the course fees for which were paid by the firm. The respondent failed to sit the exam but made various representations to colleagues that he had either sat and failed the exam or that he had passed it. The representations were repeated and untrue.
Following a self report, admissions of breaches of Principles 2 and 6 were made. Dishonesty was not admitted, but found and, based on that finding, striking off was ordered.
In both cases, the respondents relied to some extent (in mitigation) on the working environments of their firms. Scott practiced in a busy and stressful criminal legal aid practice involving long hours travelling to various Courts and last minute instructions. In Freeman, whilst the firm was very different the pressures were similar – a heavy workload and an alleged overbearing culture which made it difficult for the respondent to admit to the firm his initial misrepresentation.
The final case, SRA v Igor Leonidovich Krivoshekov [17.09.19] (Krivoshekov), was a judgment on an agreed outcome. The respondent, a partner in a US firm, submitted inappropriate expenses over the course of a year to the value of £24,605. Dishonesty was admitted and striking off was ordered.
Three apparently disparate cases all within the category “Other”. But what links them is the fact that they are all internal to the firm – no clients or client matters were involved or client detriment suffered. What is now clear – both from the cases presently in the news and the recent Guidance and Standards and Regulations is that the SRA is interested in the “whole” solicitor, not just their client facing aspect, and all aspects of their conduct inside and outside the office will be open to investigation in the event that any of the widely drawn Principles are engaged. This time next year, we would expect that the “others” will be broken down into categories of their own and cumulatively will compete with client money issues for the top spot in our table.