England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th October 2002

Lord Justice Brooke : This is the judgment of the court.

1. This is an appeal by Isabella Iyama-Onibudo against the sentence of a Disciplinary Tribunal of the Law Society on 22nd March 2002 whereby she was ordered to be struck off the roll of solicitors with effect from 2nd April 2002 following her conviction on charges of professional misconduct. At the end of the hearing on 31st July 2002 we announced that we would allow her appeal to the extent that a penalty of two years’ suspension would be substituted for the penalty ordered by the Tribunal. This judgment contains our reasons for this decision.
2. On 26th February 2001 disciplinary proceedings were initiated against the appellant and two other solicitors, Mr Nwoko and Mr Farrell. They each faced eight allegations of professional misconduct in connection with the affairs of a firm called Awtar Singh & Co. The appellant also faced three allegations of professional misconduct in connection with the affairs of a firm called Iyama and Co. All these matters were listed for hearing on 11th October 2001.
3. On that occasion Mr Nwoko could not attend through illness. The Tribunal therefore resolved that it would adjourn the hearing of all the allegations relating to Awtar Singh & Co. It also decided that it would deal separately in that context with the case against the three solicitors and the case against a Mr Jima. It proceeded to hear the case against the appellant in relation to the affairs of Iyama and Co, and in due course found her guilty of three charges of professional misconduct and ordered her to pay a fine of £5,000. We will return to this matter in paragraphs 41-43 below.
4. The matters which related to the affairs of Awtar Singh & Co commenced on the death of Mr Awtar Singh on 15th February 1997 and continued until a Mr Dunitz took over the affairs of that firm on 23rd August 1999. At all material times the moving spirit within that firm, which conducted its practice from offices at 98 Kilburn High Road, NW6, was a Mr Jima. He said he was a qualified Nigerian lawyer, but he did not possess professional qualifications in this country, and it was therefore necessary that the affairs of the firm should be supervised by a qualified English solicitor of at least three years standing. The Tribunal held that in the absence of any evidence of registration Mr Jima could not be regarded as a registered foreign lawyer for the purposes of any relevant regulations.
5. In all these circumstances the Tribunal’s attention was focussed on the extent, if at all, to which Mr Jima was supervised during this two and a half year period, and on breaches of the Solicitors Practice Rules and the Solicitors’ Accounts Rules, and unjustified claims for costs from the Legal Aid Fund which came to light in respect of that period.
6. Mr Jima was variously described as a “trainee solicitor” and a “practice manager”. The Tribunal said that it had received evidence that he was untrustworthy. In an appeal against a criminal conviction in a wholly unrelated matter the Criminal Division of the Court of Appeal had described him as a dishonest rascal when it quashed his conviction. On 15th October 2001 the Tribunal made an order against him pursuant to Section 43 of the Solicitors Act 1973 in relation to his conduct in the present matter.
7. The Law Society’s records revealed five separate periods on which one or other of three solicitors appeared to have practised as principals in the firm:

15.2.97-1.2.98 Mr Nwoko on his own account

1.2.98-28.2.98 Mr Farrell on his own account

28.2.98-30.10.98 Mr Farrell and the appellant in partnership

31.10.98-30.11.98 The appellant on her own account

1.12.98-23.8.99 The appellant and Mr Nwoko in partnership.

It is convenient to describe the Tribunal’s findings and other material matters relating to each of these periods separately.

8. The first period began on the day Mr Awtar Singh died and continued until 1st February 1998 when Mr Nwoko went to Nigeria. Mr Nwoko was born in 1960 and was admitted as an English solicitor in 1991. He conducted his own solicitors’ practice in offices in Gray’s Inn Road, but at the material time his wife, who was also a solicitor, had been qualified for long enough for her to be able to run the practice on her own. He had originally met Mr Jima through the Association of Nigerian Lawyers. He understood that he was a qualified Nigerian lawyer and that he was studying to become qualified in England. Mr Jima persuaded him to undertake the role of supervising the firm until such time as he was fully qualified himself. Mr Nwoko believed that Mr Jima was the owner of the firm.
9. In those circumstances Mr Nwoko originally agreed to act as a consultant to the firm for a fee of £5,000 per year. At the end of May 1997, however, he consulted the Law Society’s Ethics Department about the extent of his responsibilities, and following their advice he renegotiated the arrangements with Mr Jima with the effect that he would thenceforward be paid £3,000 per month and undertake more extensive duties. On 19th January 1998 he gave notice to the Law Society that he was ceasing to supervise the firm with effect from 1st February 1998. He wished to pursue a career in politics in Nigeria.
10. This was the time when the appellant first came into the story. She was born in 1960. She obtained a law degree from the University of Westminster in 1990 and a masters’ degree in 1992. She passed the solicitors’ final examination in 1993, and because she had considerable experience in legal practice she was allowed a one year exemption by the Law Society. She was admitted as a solicitor on 1st October 1996.
11. She had been a trainee solicitor with the firm of Procaccini Farrell & Co in Stockwell. She did not like the Stockwell area, however, and in due course she decided to start her own practice under the name of Iyama & Co in Tabard Street, Southwark. Because she could not be a sole principal of that firm until she was a qualified solicitor for three years, Mr Farrell, who was a partner in the firm of Procaccini Farrell & Co, had agreed to supervise her, while at the same time continuing to devote sufficient time to his own firm. The new firm of Iyama & Co was launched in March 1998 when the appellant had had less than 18 months’ experience as a qualified solicitor. Mr Farrell himself had only been qualified for four years at this time.
12. The appellant met Mr Jima at a social gathering towards the end of 1997, and she had a short intimate relationship with him in the early months of 1998. He told her about Mr Nwoko’s impending departure, and she persuaded Mr Farrell to step into Mr Nwoko’s shoes. She believed Mr Jima to be a fully qualified Nigerian lawyer, and she understood that Mr Nwoko was the partner in the firm of Awtar Singh & Co until his departure, and that Mr Farrell was succeeding him as the partner there. Her evidence was to the effect that she only visited the Awtar Singh offices once, in a social capacity, during the nine months in 1998 when Mr Farrell was connected with that firm. She denied any knowledge of the circumstances in which Mr Jima had notified the Law Society that she was a partner of Mr Farrell at that firm from 28th February 1998 onwards. Mr Farrell told the Tribunal that this represented the true position despite the fact that no written partnership agreement was ever made.
13. So much for the second and third periods. In the early autumn of 1998 Mr Farrell found that the task of supervising a firm in Kilburn, in addition to his responsibilities in Southwark and Stockwell, was getting too much for him, and he told Mr Jima that he would cease his supervisory responsibilities, for which he had received no payment, with effect from 30th October 1998. (He also withdrew from his similar responsibilities at Iyama & Co in January 1999, and a Mr Kio took his place there). So far as the Law Society was concerned, as a result of what Mr Jima told them their records showed that the appellant then practised as a principal in the firm on her own account until 30th November 1998, and that she thereafter practised there in partnership with Mr Nwoko until 23rd August 1999 when Mr Dunitz took over.
14. The situation on the ground was very different, but one of the difficulties we encountered on this appeal (against sentence only) was that the Tribunal did not make clear findings of fact as to the appellant’s knowledge of what was happening, or of what Mr Jima was saying on her behalf, at certain important moments in the history.
15. Mr Nwoko’s account of the matter was that it was in December 1998, following his return to London, that Mr Jima invited him to act in a supervisory role again, and that he resumed his involvement with the firm in January 1999. The following month, however, he found himself unable to continue because he wished to pursue a career in politics in Nigeria, and he assumed that Mr Jima would tell the Law Society that he was dropping out. He ceased to have any involvement with the firm from the end of February 1999.
16. In June 1999 it came to his attention that his name was still on the firm’s letterhead, and he told Mr Jima to take it off. On 29th June 1999 he wrote to the Law Society to the effect that he had only acted in a supervisory capacity during January and February 1999, and that he had recently given formal notice to the firm of his inability to continue to supervise its affairs. He did not receive any remuneration during his second period of involvement.
17. So far as the appellant was concerned, she said that in the autumn of 1998 Mr Jima had asked her to help with the preparations needed to pass the Legal Aid Board’s new franchise audit. She had been learning what was needed in this context in connection with the affairs of her own firm in Southwark, and she said she agreed to help Mr Jima in this regard in the New Year once she had some free time to do so. She told the Tribunal she had first attended the Kilburn firm’s offices for this purpose in February 1999, and her role was confirmed to straightening out a large number of existing files which were going to be presented for the purposes of satisfying the audit. She did not do any original work on the files, or submit any bills for payment in connection with the work recorded in the files, whether to the Legal Aid Board or to anyone else.
18. She found, indeed, that the Legal Aid Board had already imposed a ban on any further payments to the firm for immigration work until it was satisfied that its affairs were in proper order, an event which never happened. Her account of the matter was that Mr Jima had told her that Mr Nwoko had asked him to contact her to see if she could help, and that she had felt very honoured by this invitation, because Mr Nwoko was a very popular solicitor. In the event she became very disillusioned by what was happening at Awtar Singh & Co, and her involvement with them ceased in July 1999. She accepted that she had continued to be held out as a partner in the firm until shortly after Mr Dunitz arrived on the scene (see para 4 above).
19. Most of the evidence adverse to the appellant came into being from the time the Legal Aid Board started to inquire into what was going on in connection with the firm’s immigration work. Their investigations had started on 2nd December 1998, and the evidence before the Tribunal ran along the following lines.
20. On 9th December 1998 the firm had written to the Board’s Area Manager on notepaper which contained the names of Mr Nwoko and Mrs Onibudo as principals. The letter alleged that the qualified solicitors with current practising certificates were the appellant, Mr Farrell (a partner till 30th November 1998), Mr Nwoko and one other (newly admitted) solicitor. It identified the other firms at which the appellant and Mr Nwoko were “employed”, and described the arrangements for the supervision of unadmitted members of staff. In particular it was said that Mr Jima had been supervised by Mr Farrell until 30th November 1998 and that he was “currently directly supervised” by the appellant.
21. On 22nd February 1999 two members of the Board’s staff visited the firm’s offices, where they interviewed the appellant and Mr Jima. Some of the contents of the written record of this interview were disputed by the appellant, and no direct evidence was called before the Tribunal to help them to resolve any conflicts. What the record showed was that the appellant identified the two members of staff whom she supervised, and that she said that she also supervised Mr Jima when Mr Nwoko was absent. She said she met the staff on a daily basis for informal supervision, and that if she was not there they would go to Mr Jima. She signed the post before it went out and opened the incoming post. She said she would be at the office until 6pm and occasionally until 10pm. She said there was always a supervising solicitor at the firm.
22. There were said to be about 1500 immigration files, of which 700 could be considered to be active. She had conduct of about 200 of them. Mr Nwoko’s absence was explained on the basis that he had gone to Nigeria ten days earlier due to a family bereavement. The appellant said he was a partner in the firm who dealt with a lot of private clients. She normally attended the firm in the mornings and Mr Nwoko in the afternoons, and it was in his absence that it had been arranged that she would come in at 8am and stay until 6pm, when she would go and see her own clients in Southwark.
23. The Board’s officers then undertook a detailed assessment of five of the firm’s claims for costs in connection with immigration matters, and on 17th March 1999 it notified the firm of its very adverse conclusions in relation to all five files, on all of which it assessed the firm’s claims for costs at nil. It also imposed a “vendor hold” on the firm’s Legal Aid account.
24. The firm appealed against the area office’s adverse findings, and the Area Committee heard the appeal on 19th April, 19th May and 14th July 1999 and 20th June 2000. Before the second of these hearings the Committee received a skeleton argument from the firm’s counsel which asserted that each file before the Area Committee (and indeed all other files) had been subject to the supervision of the two principals, which was carried out on a regular basis as and when needed. This skeleton argument was accompanied by a letter which again showed Mr Nwoko’s and the appellant’s names on the firm’s letterhead.
25. On 19th May 1999 the appellant attended the appeal hearing, together with Mr Jima and counsel. That hearing was adjourned because the committee wished the Board to consider whether to refer the question of a possible attempted fraud by Mr Jima to the Office of Supervision of Solicitors (“OSS”).
26. At the next hearing of the appeal in July 1999 the appellant told the committee she had joined the firm as a partner in September 1998. She said she had come to help with its restructuring programme on the understanding that she would be remunerated if the restructuring was successful. At present she was not being paid anything. It was her understanding that Mr Nwoko owned the entire equity in the firm, and that it was he who had employed her. This evidence led the Area Committee to adjourn the matter again in order to make inquiries of the Law Society as to the ownership of the firm. In due course the Law Society revealed the evidence from its records which we have described in paragraph 7 above They also revealed that a newly admitted solicitor (mentioned in para 20 above) had been employed by the firm in a locum capacity between March and December 1998.
27. Finally, on 20th June 2000, nobody attended on behalf of the firm at the final hearing of the appeal, when the Area Committee decided to notify the Law Society and the OSS of what it had found. It took the view that Mr Jima, an unadmitted solicitor, had been in effect the sole principal at the firm at all material times, and that he could not be considered a competent and responsible person.
28. In the meantime the Law Society had embarked on its own inquiries into the affairs of Awtar Singh & Co. On 18th and 24th May 1999 its Investigation and Compliance Officer (“ICO”) conducted an inspection of its books of account, and on 1st June 1999 the OSS sought an explanation of the matters the Legal Aid Board had brought to its attention (see para 26 above). On 1st October 1999 Mr Ireland, on behalf of the Law Society’s Monitoring and Investigation Unit had a meeting with Mr Nwoko and the appellant, and following the report he submitted in November the Law Society resolved on 15th December 1999 to intervene in the practice of the firm, which Mr Dunitz had taken over by this time. During the first half of 2000 the relevant committee of the Law Society resolved to refer the conduct of Mr Farrell, Mr Nwoko, the appellant and Mr Jima to the Solicitors’ Disciplinary Tribunal both in relation to the Legal Aid Board’s complaint and more generally.
29. The appellant made different statements at different times from October 1999 onwards about the extent of her involvement in the affairs of the firm. On 1st October 1999 she told Mr Ireland that she had been in partnership between 1st December 1998 and the time she told Mr Dunitz that she was leaving. She was not paid while she was there. She knew that Mr Nwoko was coming in as a partner. He bought in, and did not have to be interviewed. She said she was in partnership with him for a month, and he was supposed to be there full time. She said she had met him.
30. In a letter dated 24th January 2000 to the OSS the appellant enclosed a witness statement she had signed in December 1999, in which she said she was a junior partner in the firm between November 1998 and 27th September 1999, when she terminated her partnership due to work overload at her Southwark firm. She said that whilst she was a partner she attended the office regularly each morning to supervise the files in her control.
31. On 6th April 2000 she told the OSS in a letter that she had become involved in the firm in the autumn of 1998 in an administrative and supervisory capacity and nothing else. Because she had qualified as recently as October 1996 she could not have been a principal of the firm at any time. On 12th May 2000 she told the OSS in a letter that she had told Mr Nwoko that she was under pressure and as such could not continue being a supervising partner at the firm. She said she had written to the Law Society’s Records Department on 21st July 1999 informing them of this fact.
32. Finally, in a witness statement made during the autumn of 2000 in connection with judicial review proceedings (concerned with the imposition of restrictions on her practising certificate) she said that she undertook supervisory duties at the firm only until she resigned from the firm on 27th September 1999. She continued:

“However, I was not involved in the control of case files until the beginning of March 1999, when I undertook supervision of files with Mr Ned Nwoko. I terminated my relationship at that firm in September 1999, as observed above.”

33. Her evidence during the Disciplinary Tribunal proceedings took a different slant. Paragraphs 7, 9 and 13 of her witness statement dated 1st October 2001 contained the following explanations:

“7. Between February 1998 and November 1998 (essentially the time when Mr Farrell was a partner there) I visited the firm once, in a social capacity to see Mr Atakpu-Jima. I can state categorically as regards that period (and indeed thereafter – see below) that I was not a partner of the firm, nor did I have anything to do with its management, accounts or caseload, I understand that Mr Farrell believed at the time that I was a partner of the firm. I now understand that Mr Farrell accepts that I did not consider myself so, and indeed that there was no written evidence of any partnership or business agreement.

9. …Although I may have used the term ‘partner’ it is quite plain that I could not have been a partner, but was at best an associate for the purpose of assisting in obtaining the franchise.

13. I was never a partner at Awtar Singh & Co (incorporating Austin Sheikh & Co). I simply have no idea how the Law Society have records that show that I was a partner in the firm until October 1998 I can only assume that Mr Atakpu-Jima made statements to that effect without my knowledge or consent. As regards the allegation that I was a partner from 1 December 1998 onwards, I would reiterate that I had no status whatsoever at the firm at that time, as is clear from the above. ” (Emphasis added).

34. During her evidence to the Tribunal the appellant evidenced, on the face of it, very considerable ignorance about the way in which solicitors’ firms are structured. She said that most firms were sole practitioners. A firm must at least have a principal who was a solicitor, but a firm cannot have two principals. Until questions were put to her during 1999 the law of partnership did not really mean anything to her. She deeply regretted ever having used the words “partner” or “supervising partner” or “junior partner”. This was a big mistake. She had never had a partnership agreement with Mr Farrell in relation to the affairs of Iyama and Co, nor with Mr Farrell nor Mr Nwoko nor Mr Dunitz in relation to the affairs of Awtar Singh & Co. She now had a partnership deed with Mr Kio, who was Mr Farrell’s successor at Iyama & Co, and this deed set out the responsibilities of a partner.
35. Mr Jima had told her that Mr Nwoko owned the whole of the equity in Awtar Singh & Co. She had ended her intimate relationship with him, which lasted between February and June 1998, as soon as she discovered he was married. She lent him money from time to time up to June 1999 to help him pay his staff, and in the end he owed her over £8,000. She was never paid anything for her help with the firm, although Mr Jima told her that if the Legal Aid Board released their money he might be able to give her something in future.
36. She said she had only agreed to help Mr Jima with preparing his firm’s files for audit partly because she had pity on him and was friendly with him and partly because she felt honoured that Mr Nwoko, the owner of the firm, had asked if she would help. She had allowed herself to be described as “supervising partner” for the purpose of helping the firm to obtain the franchise. When she said that she joined as a partner, she was not an equity partner nor a salaried partner. She was not being paid anything at all: her only hope was that she would be remunerated if the restructuring was successful.
37. She said that Mr Jima sent out computer-printed letters on the firm’s letterhead which he prepared himself, and she did not know that her name was on the letters. Mr Jima chopped and changed his letterhead to suit his own purposes. She denied any knowledge of the letters Mr Jima sent to the Records Department of the Law Society asserting her connection with the firm, with her name on the firm’s letterhead.
38. During the period when she was supervising the files, no new files were opened because the Legal Aid Board had imposed a “vendor hold”. The 200 files she was allotted were mostly managed by two of the unadmitted staff of the firm, and they were in a mess. She was teaching the staff how to organise their files. It was stupid of her to describe herself as a junior partner. She was not a partner in the legal sense. It was just a word she had coined because she did not know what level or status to give herself. She did not know whether to call herself a consultant. Mr Jima had thought he could label her as a supervising partner in the firm just for franchising purposes. She had nothing to do with the accounts of the firm, and she never attended on any of the firm’s clients.
39. She said she had only met Mr Nwoko once in her life. She thought she might have spoken to Mr Dunitz once. She thought that Mr Jima probably told Mr Dunitz what to say when he told the Law Society on 23rd August that she would continue to act as a partner in the firm.
40. She was very bitter about Mr Jima. She said he told lies to the Law Society and that he was a liar and a thief. She had now been told that he had in the past served 18 months in Canterbury Prison. This related to the occasion when the judges of the Court of Appeal told him that he was a dishonest rascal when they quashed his conviction for fraud.
41. We must now mention the proceedings against the appellant which went forward on 11th and 12th October 2001 (for which see para 3 above). These related to her conduct in relation to the affairs of Iyama & Co in Southwark during the autumn of 1998. They arose during her first year of practice at that firm, when her supervising principal, Mr Farrell, was also concerned with the affairs of a firm in Stockwell and a firm in Kilburn.
42. The Tribunal acquitted her of charges of fraudulent conduct and deceit. It convicted her, however, of conduct unbefitting a solicitor in that she:

(i) claimed costs from the Legal Aid Board that she knew or ought to have known she could not justify;

(ii) failed to comply with a professional undertaking;

(iii) recklessly provided information and/or made representations to the Law Society’s ICO which she knew or ought to have known to be or would prove to be inaccurate.

43. These proceedings arose out of the claims made by the appellant’s firm for the cost of attending asylum seeking clients who were detailed in Rochester Prison, her failure on one occasion to comply with an undertaking that a client would be represented at an immigration hearing, and her conduct during the ICO’s investigations. The Tribunal said it was greatly alarmed at the overall picture which emerged about the firm's standards of record-keeping. It accepted that the appellant was a relatively inexperienced solicitor at the time. It imposed a fine of £5,000 and ordered her to pay the costs of the proceedings in order to mark its extreme disapproval of her behaviour.
44. We turn now to the orders the Tribunal made in relation to the Awtar Singh matter. The Tribunal made different findings in relation to each of the three solicitors charged. Since the appellant complains of disparity of treatment, it is necessary to set down these findings in some detail.
45. The first four charges were concerned with breaches of the Solicitors Accounts Rules. There was a cash shortage of £887.14 on client account, and a liability of £292.20 to a client was not shown on the books. Mr Farrell admitted that he was guilty as charged. Mr Nwoko and the appellant were acquitted. Mr Nwoko was acquitted because the breaches occurred during a period of time when he did not maintain stewardship of the firm, and the appellant because she was not liable for compliance with the Solicitors’ Accounts Rules during the period of time to which they related. Mr Farrell accepted that he might personally have made the mistakes with which these charges were concerned.
46. Charge (v) was a charge that the three solicitors had made claims for costs on the Legal Aid Fund which they knew or ought to have known they could not justify. The appellant and Mr Nwoko were convicted. Mr Farrell was acquitted on the grounds that the claims in question had been made against the Fund after he ceased to have any connection with the firm. So far as Mr Nwoko was concerned, such claims were made during his second period of stewardship, which lasted between December 1998 and February 1999. The appellant was convicted because such claims were made out during the period when she was held out as a partner in the firm, and she had told the Tribunal that she had supervised the files relating to the immigration work in respect of which those claims were made.
47. By Charge (vi), the three solicitors were charged with failing to exercise proper supervision of staff. Mr Farrell was acquitted, because the Tribunal was entirely satisfied that during his period as a principal at the firm he had exercised full and proper supervision over the staff. It convicted Mr Nwoko on the basis that the incorrect claims referred to in Charge (v) had been submitted by members of staff who could only have pursued that course in the absence of proper supervision. It is clear from the chairman’s oral remarks at the end of the hearing that the Tribunal also intended to convicted the appellant on this count (presumably for similar reasons), although this fact is omitted from its formal Findings and Order.
48. Under Charge (vii) the three solicitors were convicted of failing to ensure that the office of Awtar Singh & Co was properly supervised, contrary to Rule 13 of the Solicitors Practice Rules. Mr Farrell was convicted on the basis that although he had been careful in his supervision of the practice during the time when he was a principal, Rule 13 imposed a continuing obligation, and Mr Farrell had left the firm on 30th October 1998 without ensuring that it would be properly supervised following his departure. He had made a relaxed assumption that Mr Nwoko was going to pick up the reins, but this did not occur. It was unacceptable that between 30th October 1998 and the beginning of January 1999 the firm had continued to operate without a fully qualified solicitor having responsibility for its supervision.
49. Mr Nwoko was convicted of Charge (vii) during his first period of stewardship on the basis that he had failed to comply with the requirements of Practice Rule 13 either in the ordinary course of fulfilling the requirement for attendance by a qualified solicitor when the office was open to the public or in the sense that he was acting on behalf of a deceased sole principal’s personal representative. With regard to the second period, he had simply abandoned the practice at the end of February 1999 without taking any steps to ensure that proper supervision arrangements were in place following his departure.
50. The Tribunal said of the appellant that even if she was qualified for a period of less than three years she could not escape the responsibility for ensuring that the firm was supervised in accordance with Practice Rule 13. At the time when she was held out as a partner in the firm she was actually liable for any breach of Rule 13.
51. Finally, all three solicitors were convicted of failing to deliver and/or delivering late Accountants’ Reports relating to the affairs of the firm notwithstanding Section 34 of the Solicitors Act 1974 and the rules made under that section. These reports ought to have related to the year ending 31st May 1999 and the period between 1st June 1999 and 17th December 1999 (when the Law Society intervened in the practice). The three solicitors were convicted in so far as each had been a principal and/or partner and/or had been held out as a principal in the firm during one or other or both of the periods to which the outstanding accountants’ reports related.
52. The Tribunal imposed a fine of £5,000 on Mr Nwoko on each of the four charges on which he was convicted, and ordered him to pay 40% of the costs of the application. We were told that the Tribunal faced the difficulty in his case that because he was absent in Nigeria, a period of suspension would have little real effect, and the Law Society would be able to exercise control over him in future by reason of the fact that he had been fined on this occasion. Mr Farrell, for his part, was suspended from practice for one year and ordered to pay 20% of the costs. The appellant, on the other hand, was struck off the roll and ordered to pay 40% of the costs.
53. In sentencing her, the Tribunal said it took a more serious view of her behaviour than it had of Mr Nwoko’s. It took into account the evidence it had received from witnesses who spoke highly of her competence as a solicitor and her enthusiasm for the profession. Her ambition was plain for all to see. She had claimed that she had supervised the files on which wrong claims had been made to the Legal Aid Board and it was clear to the Tribunal that if members of staff made such claims they could be explicable only by a lack of proper supervision by the person charged with such supervision. The Tribunal continued:

“The Tribunal has noted Mrs Onibudo’s demeanour and the conflicting evidence she has given in different jurisdictions and on other occasion. The Tribunal has concluded that Mrs Onibudo asserted that she was a partner in Awtar Singh & Co when it suited her purpose to make such an assertion but denied that she was a partner when it was in her interest to make such denials.”

54. The Tribunal was very concerned that a solicitor would, especially in judicial proceedings, put forward as assertions of truth contradictory propositions to those now put forward to the Tribunal. It concluded that she failed to demonstrate the probity, integrity and trustworthiness required of a solicitor. Bearing in mind its first duty to protect the interests of the public, the Tribunal reached the conclusion that it was right to make an order striking her off the roll of solicitors.
55. The appellant’s grounds of appeal were expressed in these terms:

“1. The Tribunal made no finding of dishonesty against me and the penalty was therefore disproportionate to the breaches of discipline found proved against me.

2. The Tribunal found that I had allowed myself to be held out as a partner, which is not so serious as to justify the penalty imposed.

3. The Tribunal found that I was not a partner of Awtar Singh & Co, therefore essentially agreeing with my statements to that effect. Those statements were therefore irrelevant to the issues before the Tribunal and should not have been taken into account in its findings.

4. The Tribunal made identical findings against myself and another Respondent but imposed wildly disparate penalties: I was struck off the roll whilst he was fined. The penalties imposed therefore offend against the consistency principle of good administration.”

56. Although there was no appeal against any of the appellant’s convictions, or against any of its findings of fact, we encountered considerable difficulty in deciding the fair course to adopt on the appellant’s appeal against the inconsistent penalty imposed on her because the Tribunal did not make findings of fact on critical issues. In particular it did not make clear findings as to which parts of the appellant’s evidence it accepted (particularly in relation to her naivety about the very concept of partnership) and which parts it rejected.
57. Nor did it appear to take any account, at any rate expressly, of the fact that as an inexperienced solicitor she was being taken advantage of and deceived by a more experienced man (albeit not qualified in this country), with whom she had had an emotional relationship and who had succeeded in deceiving Mr Nwoko and the Law Society as well. Moreover, when the Tribunal referred to the appellant’s demeanour, it did not make clear the extent to which it took into account the well-known problems that are encountered when assessing the demeanour of a person from a different culture. For these problems see, generally, the Judicial Studies Board’s Equal Treatment Bench Book (1999), section 6.5.
58. In paragraph 131 of its findings the Tribunal found that the appellant was held out as a principal in the firm from February 1998 until 27th September 1999. The Tribunal did not expressly find that she knew she was being so held out (through Mr Jima’s letters to the Law Society’s Records Department) during the whole of this period, and it appears from paragraph 135 that the Tribunal based its findings on what the appellant was to say retrospectively about the matter when inquiries were made during 1999. The Tribunal did not identify the date (presumably before the end of 1998) when the appellant first allowed herself to be held out to a third party as a partner. The Tribunal’s approach is encapsulated in the final sentence of paragraph 138 of its findings:

“Mrs Onibudo’s statements that she was a partner in the firm of Awtar Singh coupled with her being held out as such could not now be negated because Mrs Onibudo thought (as she said in evidence) that she had been stupid to make such statements or because she had acquiesced (as she appeared to have done) in being held out as a partner especially for the purpose of supervising staff conducting Legal Aid work.”

59. The Tribunal’s findings of guilt, so far as the appellant was concerned, all appeared to flow from the fact that she herself was to date her arrival at Awtar Singh & Co as a “partner” in the autumn of 1998. It did not, however, make any finding that she was in fact present in the firm’s offices at all until early 1999, when she said that she was engaged in supervising and rearranging in a coherent order the 200 immigration files managed by the two unadmitted members of staff she was “supervising” for the purposes of helping the firm pass its franchise audit. Her evidence to the Tribunal was that she did not herself see any of the firm’s clients and that she was not herself involved in making any claims against the Legal Aid Fund in respect of the work done in any of these files, and the Tribunal did not make any clear finding that it rejected this evidence. In the passage quoted in paragraph 58 above, it seems to have accepted her evidence that she acquiesced in being held out as a partner for the reasons she suggested, and it does not make it completely clear whether it was accepting part of her evidence and rejecting another part of it, or what findings it was making as to what in fact probably happened in relation to her actual involvement with these files.
60. At one stage of his submissions Mr Treverton-Jones QC, who appeared for the Law Society, suggested that we might remit the matter to the Tribunal in order to enable it to make further and better findings as to the extent to which the appellant was actually involved in supervising these two unadmitted members of staff on an ongoing basis between September (or November) 1998 and February 1999, on the grounds that the seriousness of her misconduct, as contained in Charges (v), (vi) and (vii), could turn on those findings. We were reluctant, however, to involve the parties in any further expense on that account, because it appeared to us that the differential treatment meted out to the appellant (in contrast to the two more experienced solicitors who received lighter sentences) stemmed not so much from those matters (all relating to a period when she was on any view very inexperienced) but from the way she behaved when inquiries were put in train, and from the way she appeared to the Tribunal when she gave evidence at the hearing.
61. She did not, however, face any charges of dishonest or reckless conduct in relation to the Awtar Singh affair (as opposed to the Iyama and Co matters, for which see paras 41-43 above). It appears to us that before the Tribunal takes the extreme step of striking an inexperienced solicitor off the roll for reasons of lack of probity, a charge involving lack of probity should be fairly and squarely put to the solicitor. In Bolton v Law Society [1994] 1 WLR 512 the Court of Appeal referred at p 518 to various shortcomings on the part of a solicitor being “shown” or “established”. Since the appellant was not charged with making dishonest or reckless statements in 1999 or 2000, that language would have been inappropriate in the present case. If she had been so charged, she would have been in a position to prepare her defence to those charges, and in those circumstances the Tribunal would have been bound to make findings as to her understanding of the meaning of the concept of partnership during the last four months of 1998 and the early months of 1999.
62. It appears to us to be too extreme a penalty to strike a solicitor off in circumstances where there is no substantive charge of dishonesty or recklessness; no finding that the Legal Aid Fund (or anybody else) paid out any money in respect of unjustified claims put forward by the solicitor or by staff under her actual supervision; no finding that she was paid anything at all in the course of the matters complained of; no finding of any cash shortage in relation to any of her clients; and no previous conviction which related to a period earlier than the offences with which she was now charged.
63. In addition to the excellent tributes about her dedication as a solicitor which were before the Tribunal, we received four further such tributes during the course of her appeal. Whatever her shortcomings in the management of a solicitor’s business during the first year in which she stood on her own feet after leaving Procaccini Farrell & Co, it is clear from these tributes that she has undoubted talents as a solicitor in a field of law in which talented solicitors are much needed. Mr Havers told us that her firm of Iyama and Co has had its Legal Service Commission contract renewed, so that the Commission appears to be satisfied that the affairs of her firm, in which she played a major role until she was struck off, are now being properly administered.
64. In all the circumstances, and with a good deal of hesitation, we concluded that the fair course to take would be to give the appellant another chance by allowing her appeal to the extent that we substituted a period of two years’ suspension as a penalty. Section 12 of the Solicitors Act 1974 empowers the Law Society to impose appropriate terms on any practising certificate she may seek at the end of this period of suspension, and we consider that the existence of this power will enable the Society to take whatever measures it may still consider appropriate for the protection of the public should she wish to return to practice.
65. We received interesting submissions from counsel about the extent to which the recent decision in McMahon v Council of the Law Society of Scotland 2002 SLT 623 at paras 13 to 16 should be followed by this court. On the present occasion we do not find it necessary to express any view on this point, because we are altering the Tribunal’s decision not because we differ from its expert conclusion on clearly ascertained facts but because of our overall uncertainty about the facts it did ascertain and for the other reasons we have given for concluding that to strike this inexperienced solicitor off the roll was too severe a penalty in all the circumstances.