The anticipated case of Solicitors Regulation Authority v James & Ors was decided last week, ending the careers of three solicitors, and causing severe division within the profession.
The case originated out of an SRA appeal against the Solicitors Disciplinary Tribunal’s (SDT) decision to invoke a sentence of suspended suspension as opposed to striking-off the solicitors for dishonest acts.
The three cases involved:
• Sovani James – a former junior solicitor with McMillan Williams who, in order to give the impression she had progressed a clinical negligence case, backdated four letters;
• Peter Naylor – a former TLT associate who sent five misleading emails to a corporate client so he could “buy some time” to deal with the matter;
• Esteddar Macgregor – who hid and failed to report a colleague’s misconduct.
The legal question the High Court had to address was not whether the solicitors were dishonest, but whether there were ‘exceptional circumstances’, as found by the SDT which could justify a lesser sanction than striking off.
Lord Justice Flaux concluded: “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”.
The reasons for the High Court’s decision to strike the solicitors off
The High Court followed the leading authority of Bolton v Law Society [1994] 1 WLR 512, citing Sir Thomas Bingham MR:
“Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation…”
Lord Justice Flaux stated that had the SDT “focused on the nature and extent of the dishonesty in 
determining whether there were exceptional circumstances in each of these three cases, they could not have concluded that a lesser sanction than striking off was appropriate for serious repeated misconduct of this kind, in two of the cases misleading the client and the firm and in the other assisting in the commission of a fraud and then, in effect, in its concealment”. He specifically mentioned that in the case of Ms James, the deception had continued for almost a year and a half, therefore, could not be classed as “a moment of madness”.
The Court also held that mental health conditions, including those of stress and depression resulting from work conditions, did not amount to ‘exceptional circumstances’ that could justify a lesser penalty than striking off where a dishonest act or acts had been committed.
“…whilst in no sense belittling the stress and depression from which the respondents suffered, it was in no sense exceptional. It is sadly only too common for professionals to suffer such conditions because of pressure of work or the workplace or other, personal, circumstances”.
Lord Justice Flaux went on to say that pressure at work and/or extreme working conditions cannot “justify dishonesty in a solicitor”. This was despite the fact that the work conditions endured by Ms James were acknowledged to be “‘frankly abominable”.
Is this a wakeup call for the profession?
The backlash surrounding the High Court’s decision has been palpable, with law firms being urged to take the mental health of their staff more seriously.
LawCare, a charity focusing on mental health and wellbeing within the profession, was quoted in the Law Society Gazette, stating:
“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,’ said the charity. ‘We need to pay particular attention to the needs of junior lawyers for supervision and support with making the transition into practice”.
It has also been pointed out that the SRA has the power under the Legal Services Act to set out fitness to practise criteria. The medical profession already has this in place – the General Medical Council has rules on fitness to practise, which include guidelines on managing mental health. There are calls for the legal profession to adopt a similar policy, to protect members of the profession and the public alike.
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