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BLOG: Regulatory Law: Dishonesty v Mental Health in the Solicitors Disciplinary Tribunal

23/04/2020

Mark Harries QC examines the recent SDT decision to strike off a young solicitor for covering up the loss of case papers and the disconcerting tension between mental health fragility and acts of dishonesty in the regulation of solicitors.


During our time of enforced home detention, the decision of the Solicitors Disciplinary Tribunal [SDT] to strike off the Roll of Solicitors Claire Matthews [CM], a newly qualified solicitor three weeks into her job, has been widely publicised and the cause of much anxiety in legal circles.

The SDT found proved three out of four allegations of fact brought against CM and determined beyond a reasonable doubt (as was then the test) that dishonesty was proved in respect of two of them. CM had denied the allegations as drafted, both in respect of the content of conversations alleged to have taken place with her employers and the issue of dishonesty.

In short, CM had been asked to prepare a striking out application overnight in respect of a proceedings in which, ironically, her employer was acting for the Solicitors Regulation Authority against a client alleging data breaches. CM fell asleep during her commute home and left a briefcase containing the case papers on the train. She failed to bring the loss of the papers to the notice of her employers for some 8 days, albeit she did not return to work until the 6th day post.

The SDT found proved that CM had a conversation about the whereabouts of the briefcase during which CM lied, claiming that it was at her home, on 7th day following the loss, and that she sent an email that evening falsely claiming to have left the briefcase on a train that morning on her way into work. The following morning, she tearfully revealed to her employer the true position.

The SDT decided that CM’s actions in concealing the loss of the briefcase “had been deliberate and calculated….” and which “….in reality represented a course of conduct, involving dishonesty, which had persisted for a week” and thus the “harm” caused was high [§46, 59, 44 of the judgment respectively].

In its lengthy reported decision, the SDT regarded the dishonesty underscoring the conduct as an aggravating feature because the Principles found to have been breached were those requiring a solicitor to “act with integrity” and to “behave in a way that maintains the trust the public places” in the profession [Principles 2 and 6 respectively of the 2011 SRA Principles in force at the time].

The High Court in this context defines “integrity” as connoting moral soundness, rectitude and “adherence to the ethical standards of one’s own profession” and so as wider in concept than simply acting honestly [Wingate & Another v The Solicitors Regulation Authority [2018] EWCA Civ 366. §100]. Acting in a way that lacks integrity by this standard is one thing – doing so in a way that is also dishonest is another and, plainly, more serious.

Interestingly, the latest revision of the SRA Principles in force since 25th November 2019 now explicitly separates the two concepts and endorses them as separate requirements – to act “with honesty” [Principle 4] and “with integrity” [Principle 5] – “dishonesty” also being listed as indicative of a “serious breach” for the purposes of the SRA’s revised Enforcement Strategy.

Given its findings, the SDT was driven to strike off CM unless it could find there were “exceptional circumstances” which permitted an alternative course [SRA v Sharma [2010 EWHC 2022 (Admin)]. The Guidance Note on Sanctions (7th edition) in force at the time of the decision gives “Dishonesty” a whole section to itself, recognising it as “[t]he most serious misconduct…..whether or not leading to criminal proceedings and criminal penalties” which will “almost invariably lead to striking off.” [§52] In November 2018, Flaux J reversed the SDT’s decision not to strike off solicitors in 3 cases involving varying degrees of dishonesty, helpfully summarising the development of “exceptional circumstances” in recent jurisprudence [SRA v James & Others [2018] EWHC 3058 (Admin)]. At §101 Flaux J said this:

…the most significant factor carrying most weight and which must therefore be the primary focus in the evaluation is the nature and extent of the dishonesty, in other words the exceptional circumstances must relate in some way to the dishonesty.

Flaux J quoted with approval Dove J’s words in R (SRA) v Imran [2015] EWHC 2572, Admin that fine character testimonials and a prompt confession are not factors “likely to attract very substantial weight. Of far greater weight would be the extent of the dishonesty and the impact of that dishonesty both on the character of the particular solicitor concerned but, most importantly, on the wider reputation of the profession and how it impinges on the public’s perception of the profession as a whole.”

This approach, it would appear, applies equally to registrants with fragile mental health, whether caused by the pressures of work (“sadly only too common” according to Flaux J at §112) or otherwise. Relevant to the balancing exercise they may be, but “mental health and workplace environment issues in any given case will not be a “trump card” in assessing whether there are exceptional circumstances.” [Flaux J §104]

It is this issue which has most vexed sympathetic legal commentary in recent weeks; the SDT “accepted that [CM] had a history of experiencing periods of anxiety, stress and depression” although twice it noted (at §22.33 and §62) that no “formal evidence of her mental state relating to her discovery of the loss and to her actions in the days which followed” had been presented by CM.

CM herself gave evidence that the days following the loss of the briefcase were “the darkest of her life: she barely ate, slept or showered.” She “drank alcohol to excess in order to block out the event” and “resorted to drinking bleach in an attempt to end her life.” Her own sister was sufficiently concerned to remove the keys to her balcony. At the start of 2018, CM had been declared unfit to work such was her state of mental health.

The SDT was unmoved by this evidence, both in terms of whether it defeated the allegation of dishonesty itself or mitigated the “inherent seriousness of findings of dishonesty” sufficiently to permit an exceptional course to be taken. In terms of the latter, the SDT decided that her mental health, character references and clean record merited “only limited weight” in the balancing exercise.

If there is a glimmer of hope amidst the handwringing, Flaux J’s observations as to mental health issues not being a trump card come with the rider, “without more.” What appears to be envisaged is that mental health issues which go directly to the issue of the dishonesty itself so as to dilute the culpability of the registrant for that conduct might be capable of establishing the exception to the rule [see Flaux J at §103, 110, 114 in James], at least as to sanction.

Whether anything short of a mental health condition causing a registrant not to appreciate the difference between honest and dishonest conduct could be relevant as to the predicate issue of dishonesty itself, given the objective test now applied per Ivey v Genting Casinos Ltd [2017] UKSC 67, remains to be seen.

These are not easy issues legally and, as the SDT poignantly pointed out, the path CM embarked upon once the case papers were lost, knowing as they found she did the difference between right and wrong, was “the most catastrophic path for her both personally and professionally.”

The seriousness of the consequences of an adverse finding and the complexity of the myriad legal issues in regulatory proceedings like these make it all the more surprising to find a registrant unrepresented, as CM was. Even when the law is clear, the strategic approach to the presentation of a registrant’s case can often make a difference before a regulatory panel – and sound strategy together with good judgment generally come with experience.

The decision in Matthews does not make clear the extent to which, if any, CM had enjoyed any legal advice or assistance in the lead up to the final hearing; although only recently qualified, she was not inexperienced in the legal profession having worked as a paralegal for several years and it is clear that she relied upon some legal authorities in the submissions she made to the SDT and cross-examined on issues of relevance.

It is also right to observe that the extent of her mental health fragility is not discussed in the judgment much beyond the extracts mentioned in this article.

Having said that, I cannot help but wonder whether with expert guidance, Matthews might have had a better chance of avoiding the ultimate sanction. A full and expert psychiatric assessment of her mental health history might have thrown light on what the SDT rather summarily dismissed as “periods of anxiety and stress” (noting the absence of “formal evidence”) and given more scope to demonstrate that it was of such influence upon her conduct that her culpability for the objective dishonesty was consequently diminished.

It may be that CM’s decision to contest all allegations in light of the evidence that is summarised in the judgment would not have been one taken with the benefit of sage legal advice, given what we discern were the key issues in the case. It may be that a more-than-casual causal link could have been established between CM’s mental health fragility and her conduct such that to judge her by the same standards as would be applied to someone of sound mind arguably could be regarded as discriminatory under the Equality Act 2010 (most regulators these days declare commitment to the spirt and the letter of the 2010 Act and the SDT is no exception – see §11 Guidance Note on Sanctions (7th Edn.)). A successful submission of that nature was advanced last year on behalf of a healthcare registrant whose (admitted) multiple acts of forgery, precipitated by their PTSD and in respect of which they received a criminal caution, avoided even a finding of impaired fitness to practise.

There may also be other more imaginative arguments to be mounted, which we commentators with our limited information about the case cannot envisage.

Of course, legal advice and expert assistance cost money and many registrants in a variety of regulated professions are simply unable to meet those costs when their conduct is scrutinised, especially when the body bringing the case has comparatively limitless resources; CM had been sacked and was working at a call-centre for £9 an hour at the time of the final hearing.

In CM’s case, the SRA sought over £55,000 in costs for the 4-day hearing, reduced by the SDT to £10,000 – still a substantial figure for CM to find given her legal career is now over. By contrast, the Guidance Note on Sanctions makes it plain that if the registrant wins against the SRA, the usual rule in civil proceedings that “costs follow the event” does not apply unless the complaint was “improperly brought.” [see §72-77 7th Edn.] This imbalance, rather disconcertingly, has been upheld by the High Court repeatedly.

It is the notion that regulated professions often seem perfectly content for the lay person to fight such important and career-defining battles alone or at prohibitive financial exposure, and not the SDT’s refusal here to regard as exceptional circumstances CM’s mental health difficulties, that might be the real scandal in modern regulatory proceedings. That sense of injustice is all the more amplified given the SDT, like many other regulatory bodies, has now lowered the standard of proof to the civil standard [see §5 Part 1 The Solicitors (Disciplinary Proceedings) Rules 2019].

Without the protection of the criminal standard of proof, we are likely to find career-ending decisions made more frequently whether a registrant is legally represented or not.

Postscript: On 22nd April, it was announced that CM has lodged an appeal against the SDT’s decision not to regard her mental health fragility as exceptional circumstances justifying a sanction other than strike off. In doing so, CM is being represented pro bono by very experienced regulatory solicitors and counsel; there remains an exposure to additional costs liability should the appeal be unsuccessful. CM’s GoFundMe page is here

23/04/2020

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