England and Wales Court of Appeal (Civil Division) Decisions

ON APPEAL FROM THE LAW SOCIETY

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 6 November 2001

1. LORD PHILLIPS, MR: This is an appeal against the decision of Appeals Committee on 5 March 2001, which approved the decision of the Adjudicator to refuse an application by a firm of solicitors, Messrs Evans Dodd, made under section 41 of the Solicitors Act 1974 (as amended) to employ Mr Pollard as a conveyancing manager.
2. The facts of the case can be briefly summarised as follows. Mr Pollard was struck off the Roll of Solicitors on 10 February 2000 for conduct unbefitting a solicitor between June 1996 and February 1998 when he was a partner at Rochman Landau. He was found guilty of the following disreputable conduct:

(a) misuse of client funds, in particular dishonestly receiving costs on account and withholding the same from client bank accounts, and dishonestly withholding client Trust funds from the client bank account.

(b) As the control Trustee of a deceased client, wrongfully paying £4,200 of legal fees, allegedly incurred prior to the client's death, which sum was not referred to as a debt due by the estate in the Inland Revenue affidavit.

3. No dishonesty was found in relation to the latter offence. But, the misuse of client's funds related to a series of incidents over a period of some 20 months. Not one of them involved a huge sum of money, but they amounted to £7,000 or £8,000 in total.
4. In the course of the hearing I suggested to Mr Robson, who appeared in support of this application, that it was the dishonesty of an employee who "puts his hand in the till" from time to time. The difference was, however, that the sums involved were much more than you would find in the till, and the victims of the dishonesty (in the first instance at least) were individual clients whose monies were misappropriated, albeit that these offences might in the longer term have had serious implications for his firm.
5. Mr Pollard was summarily dismissed by his partners at Rochman Landau on 24 February 1998 for other matters which had caused them concern. It was subsequent to his dismissal that these incidents of dishonesty were discovered. In the meanwhile he had become a partner at Max Bitel Greene & Co from 5 May 1998 until 15 November 1998, at which point conditions were applied to his certificate. He was struck off as a solicitor on 10 February 2000.
6. Mr Pollard then worked on a management consultancy basis for several enterprises. He appears to have been awarded a good level of responsibility. His work involved delicate debt recovery, preparing reports for company directors and a complex landlord and tenant dispute concerning a liability of almost £500,000.
7. Application was made by Evans Dodd under section 41 to employ him as a conveyancing manager from 22 January 2001 onwards. The conditions of this proposed employment were that it would be for an initial three-month term; that his role would be limited to assisting a partner in the property department with general commercial and domestic conveyancing; that he would share a room with the Head of Department and he would be supervised by a senior partner, Mr Dodd, who was admitted as long ago as 1968; and that he would have no access to clients' or firm's funds, nor would he be in contact with, or take instructions from, clients.
8. The Adjudicator, Miss Susan Webb, refused the application. Her decision set out the following reasons:

1. Regard must be had for the Law Society's overriding concern and responsibility to ensure the interests of clients are protected and public confidence in the provision of legal services is maintained.

2. Mr Pollard had been found guilty of, and not appealed against, that finding offences of dishonesty.

3. With dishonesty it was only possible to grant approval for employment in exceptional cases, such as where a solicitor who has been struck off is able to adduce evidence of successful rehabilitation such as holding a position of trust outside the profession for a number of years.

4. In view of the recent findings of dishonesty, and despite many positive references supplied in support of the application, the approval would run contrary to the Law Society's policy on section 41 applications.

9. The policy was introduced in 1998 or 1999. The most material part of the policy provides as follows:

"In considering Section 41 applications OSS's overriding concern is to make sure that the interests of clients are protected and that public confidence in provision of legal services is maintained.

OSS will not normally grant approval under Section 41 (other than on an interim basis to accommodate the appeals process) in respect of any person who has been convicted of an offence involving dishonesty, or against whom a finding of dishonesty has been made by the Disciplinary Tribunal even where there has been no criminal conviction.

If, in an exceptional case, OSS were to grant approval for the employment of such a person, it would only do so on the basis that clear evidence was produced of the successful rehabilitation of the individual over a period of several years, for example through unblemished service in a position of trust and responsibility outside the profession.

Where the conviction is for an offence not involving dishonesty Section 41 approval may be granted subject to appropriate conditions provided that OSS is satisfied that no risk to the interests of clients will ensue, and an approval would not tend to undermine public confidence in the profession."

10. Evans Dodd appealed against the Adjudicator's decision, alleging, among other things, that the Adjudicator's exercise of discretion, had been improperly fettered because she considered herself bound by that policy statement.
11. An oral hearing was requested, but the Appeals Casework Subcommittee ruled that they had sufficient evidence before them on which to make the decision. No point is taken on that. The Committee refused the application giving these reasons:

"The Committee considered all the documentation submitted on behalf of the applicant, together with the findings of the Tribunal. They were impressed with the references given on behalf of the application, and the action he had taken to rehabilitate himself, and indeed had some sympathy for his position. However, they could not ignore the Tribunal's findings and the proven dishonesty. The Committee noted that the decision had not been appealed and in all the circumstances felt it was too soon to allow the applicant to work within the profession. They therefore RESOLVED to dismiss the appeal."

12. It is against that decision that Evans Dodd now appeal.
13. It is accepted that Evans Dodd is a firm of high reputation. It is also accepted that there are documents before me which show that, in the relatively short period since the appellant was struck off, he has made an impressive start to the process of rehabilitating himself.
14. In support of the appeal Mr Robson has made a number of points. First, if this application is refused, Mr Pollard will suffer real financial hardship, as will his family. Secondly, that the nature of the employment proposed will not involve any conceivable risk to members of the public because he will simply be advising the partners of the firm on details of property transactions in which he has a particular expertise. He would not be involved in any way with contacts, with clients or with handling clients' money. The point is also made that this is really the only viable outlet for the expertise that he enjoys.
15. Mr Robson also emphasised that there is in this case a considerable body of favourable references, most of them covering a period before the striking off, but one or two covering the period since the striking off. In my view, those references are two-edged. As Mr Robson has stated, Mr Pollard is a member of a very close Jewish community in North London. It is quite plain that that community is standing behind him, but a number of the referees stated, in terms, that they were unaware of the circumstances that had led to his striking off, and many of them paid fulsome tribute to his integrity and honesty as they appeared to the referees.
16. The reality is, however, that the pattern of behaviour, while not involving large sums of money, did demonstrate a serious character defect in that each offence was an unpleasant offence of relatively petty dishonesty. Mr Robson made it plain that the Law Society's current policy is not challenged. He sought to persuade me that Mr Pollard's could be treated as one of the exceptional cases for which the policy allows. It is plain that that policy is a new policy which takes a stricter line than the Law Society have taken in the past. Mr Miller, who appears for the Law Society, has helpfully referred me to a number of earlier decisions of my predecessors which show that in those cases the Law Society had been prepared to approve of solicitors, struck off because of the implication in mortgage frauds, entering into almost immediate employment in other solicitors' firms. The Law Society no longer takes that approach. It is plain that the concern of the Law Society is both for the protection of the public and for the image of the profession.
17. It is the latter that is in play here. If Mr Pollard were employed in the manner suggested, it does not seem to me that the public would be at risk, but, in my judgment, if members of the public were aware that a man, with his particular record of dishonesty, had so swiftly been re-employed within the profession, they would justifiably be concerned. This is not the type of exceptional case for which the policy makes provision.
18. I consider that the Committee's decision that it is too soon to allow the applicant to work within the profession is one that cannot be faulted.
19. For these reasons, this appeal is dismissed.
20. MR MILLER: My Lord, I would seek costs. I have put together a figure for costs in the fixed sum of £1,645. I have not had the chance of indicating this breakdown to my learned friend, although I have it here. Alternatively, if you are not minded to make a fixed figure order, I ask for costs to be assessed.
21. LORD PHILLIPS, MR: It would be much better to fix them now.
22. MR ROBSON: I know the costs follow the event. Nevertheless, Mr Pollard is someone who is under very great financial strain, and I would ask your Lordship to ameliorate any figure put forward by Mr Miller, taking that into account.
23. MR MILLER: My Lord, for the avoidance of doubt, if the petitioner here is Evans Dodd, I do not seek costs against Mr Pollard.
24. LORD PHILLIPS, MR: I will award costs in the favour of the Law Society in the sum of £1,500.