QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE SUPPERSTONE
|MICHAEL ABRAHAM PHILIP HARRIS||Appellant|
|THE SOLICITORS REGULATION AUTHORITY||Respondent|
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MR GEOFFREY WILLIAMS QC (instructed by Jameson & Hill) appeared on behalf of the Respondent
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MR JUSTICE SUPPERSTONE: This is an appeal pursuant to section 49 of the Solicitors Act 1974 against a decision of the Solicitors Disciplinary Tribunal dated 30 March 2011.
There were two further allegations that the appellant denied but the tribunal found proved.
"56.1 Having regard to allegations 1.11 and 1.12 – (those numbers are described in the tribunal's judgment) - they relate to allegations 11 and 12 which were denied – the tribunal found as follows. The tribunal heard the respondent had two elderly aunts who wanted to make new wills leaving substantial sums in their estates to him. The respondent said that he saw them regularly several times each week and they constantly said that they wanted him and only him to prepare the wills for them. Although the respondent said that he was concerned about issues of the legality of proceeding in this way, he did not consider the Professional Practice Rules.
The respondent said that he agonized over the decision as to whether to draw up the wills but finally did so. In his witness statement he had given very little information about the steps he took before making the wills. In his evidence before the Tribunal he said that he had spoken to his brother-in-law who was a solicitor to get him to do the wills but the aunts would not agree to this. The Tribunal was concerned that there was no note of this discussion nor were there any attendance notes about any of the discussions. For example the respondent had no attendance notes of the advice that he claimed to have given the aunts to obtain independent legal advice.
56.2 The date when the respondent's co-executor, Mr C resigned was not before the Tribunal, nor was there any letter/document concerning this (although the respondent said there was a court order to this effect but again this was not before the Tribunal). It would have been a simple matter for notes/documents to have recorded these matters, particularly as the respondent had expressed his concern about the legality of the matter.
56.3 So far as allegation 1.12 is concerned, the loans made to various unconnected parties out of the estate monies were not documented. There were no file notes explaining these transactions and no documentary evidence of the loans themselves.
56.4 The tribunal found that the respondent's evidence was evasive and unreliable in this regard. It formed the view that he was prepared to say whatever he felt might assist his case and on occasion blame others if he thought this might help him.
56.5 It was clear from the evidence of the respondent that he simply did not consider the rules when handling these matters and for the reasons outlined above the tribunal found allegations 1.11 and 1.12 to have been proved."
The tribunal suspended the appellant from practice for a period of two years and ordered that the suspension should take effect from 31 May 2011. Further, it recommended that should the appellant return to practice at the end of the period of suspension, it should only be in an employed environment.
"66. The respondent was a sole practitioner. The allegations against him were wide ranging and involved a number of breaches of the Guide to the Professional Conduct of Solicitors and the Solicitors Code of Conduct. He had failed to comply with the Introduction and Referral Code. He had failed to provide clients with costs information. Three of the allegations against him related to accounting breaches. The allegation regarding the propping up of his firm while using client money was serious and involved a finding of gross recklessness albeit that there were no findings of dishonesty. There had been shortcomings in conveyancing transactions. Serious allegations had been found proved against him concerning his involvement with his aunts' estates and making loans out of those estates which the Tribunal had heard had not been repaid. The Tribunal had also noted delays in filing Accountant's Reports.
67. The Tribunal regarded the cumulative effect of this misconduct as showing a cavalier disregard for the Professional Rules. The Tribunal had taken note of the fact that the Respondent had changed various practices and procedures following the commencement of these proceedings. The Tribunal had heard there had been no previous appearances before it and that a suspension might impact upon the staff of the respondent's firm. However these were serious and wide ranging findings and the tribunal found that the respondent should be suspended from practice for a period of two years."
On 26 May 2011 Burton J ordered that the suspension from practice be stayed pending the outcome of the appeal.
"19. An appeal lies to this court from the Solicitors Disciplinary Tribunal as of right, pursuant to section 49 of the Solicitors Act 1974. By section 49(4) this court 'shall have power to make such order on an appeal under this section as it may think fit.' An appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review: See CPR rule 52.11(1). The court's approach to such an appeal is set out in Law Society v Salisbury  EWCA Civ 1285,  1 WLR 1286. There Jackson LJ (with whom Arden LJ and Sir Mark Potter agreed) said:
'30. It is now an overstatement to say that "a very strong case" is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.'
"20. Law Society v Salisbury built on the seminal decision of Sir Thomas Bingham in Bolton v Law Society  1 WLR 512. It would require a strong case, said Sir Thomas Bingham MR, to interfere with a sentence imposed by a professional disciplinary committee. That body was best placed for weighing the seriousness of professional misconduct. The factors which weighed in mitigation before a criminal court were not to have the same weight before a disciplinary body because the most fundamental object was maintaining the standards of the profession rather than punishing the offender. Members of the public were ordinarily entitled to expect that a solicitor would be a person whose trustworthiness was not, and never had been, seriously in question. A profession's most valuable asset was its collective reputation and the confidence it inspired.
The essential issue is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price." 519D-E.
"14.1 The appellant's longstanding service as a solicitor since 1965.
14.2 The appellant's unblemished career and character as a solicitor.
14.3 No previous appearances by the appellant before the tribunal.
14.4 No previous findings by the tribunal against the appellant.
14.5 The appellant's acceptance of responsibility for 8 of the allegations laid by the respondent against the appellant prior to the tribunal hearing evidence on the remaining two allegations (which were found proven against the appellant by the tribunal).
14.6 No allegations of dishonesty being found proven against the appellant."
In addition to the matters referred to in ground 7 of the amended grounds we have had regard to the letter dated 27 June 2011 which is signed by members of staff of the firm who support the appellant's appeal, a number of whom are concerned that they will find it impossible to obtain alternative employment if the firm has to close. Reference is also made in the letter to a French jurist who would have to seek another principal at this late stage of her training contract.
"It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness. That requirement applies as much to barristers as it does to solicitors. If I make no further reference to barristers it is because this appeal concerns a solicitor, and where a client's monies have been misappropriated the complaint is inevitably made against a solicitor, since solicitors receive and handle clients' monies and barristers do not.
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.
If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension."
"Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic.
Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness.
Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past.
If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make the suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."
In view of the fact that Mr Harris, who is the only qualified solicitor on his side, may not have received notification of the schedule of costs we shall direct that in the absence of agreement there shall be a detailed assessment of the respondent's costs.