Professional discipline update December 2018
Welcome to the December 2018 edition of the quarterly bulletin from the R&D team at Leigh Day.
It’s been a momentous quarter for the team since our launch in September. As well as welcoming our first clients, we’ve been around the country hosting events for representatives of over 80 law firms where we shared some of our experiences of how the firm dealt with its high-profile investigation and prosecution by the SRA at the Solicitors Disciplinary Tribunal (“SDT”). More information about the events, our launch and developments in the R&D field is included in this edition.
On behalf of the team, have a restful festive period and a very happy 2019.
Managing Partner and Head of Regulatory & Disciplinary, Leigh Day
R&D team launch
Our launch in September was met by some members of the media suggesting the formation of the team showed some ‘chutzpah’ by the firm, given the SRA’s case against it, which was still ongoing at the time.
It’s certainly fair to say that Leigh Day has never been cowed by the challenge of taking on ‘the powers that be’. Our vision is to champion that ethos of accountability in an area where it can so often be so difficult for professionals to see their rights fairly represented.
The SRA’s appeal against Leigh Day
This October, the High Court unanimously dismissed the SRA’s appeal against the SDT’s June 2017 decision to dismiss all charges against Leigh Day.
Our R&D team has defended this case for over four years, a process which included one of the SDT’s longest ever hearings and a six day High Court appeal. We‘re pleased it’s over and look forward to drawing on our experience, to help fellow firms and professionals who need regulatory advice and support or find themselves subject to regulatory scrutiny.
Breakfast forum series with JLT
We’ve been around the country to meet solicitors and other legal professionals at a series of nine breakfast forums which we co-hosted with Leigh Day’s insurance brokers, JLT Specialty.
The forums focussed on our own experiences and lessons learned during the SRA’s case against the firm. Our guests included Managing Partners and Compliance Officers as well as former SRA officers. The variety of attendees ensured a wide range of views and some lively debate, particularly about the current state of legal services regulation.
If you missed these sessions, this this Q&A with Frances Swaine and our 'Take Five' document.
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Notable case: ‘Mental health matters’ and the SRA’s appeal in Sovani James & Others
In November, the SRA succeeded in three conjoined appeals that centred on the correct approach to sanction where the SDT has found a solicitor’s conduct to be dishonest. In the cases, the SDT had cited the practitioners’ mental health problems (arising from work-related stress) at the time as “exceptional circumstances” which allowed it to apply sanctions short of strike-off, the default in cases of dishonesty.
On appeal, the High Court disagreed and found the SDT’s analysis of “exceptional circumstances” should have been limited to the nature and extent of the dishonesty itself, rather than the broader circumstances in which the dishonesty occurred.
This is a cruel blow for the respondents and reinforces the traditional ‘red-line’ on sanction for dishonesty. It also means the battle for recognition of the role of mental health issues in cases of misconduct continues.
Our view is that mental health factors must, where appropriate, play a part in achieving the right regulatory outcomes for practitioners. However, the High Court’s judgment means that they will need to be considered at the point at which the
decision is made about whether misconduct is dishonest rather than at the later stage of sanction, once that determination has already been made.
Our associates, Emma Walker and Gideon Habel, have both written on issues in this area in the last few months.
If you’d like to speak to a member of the team to discuss how we can help, contact us at RDteam@leighday.co.uk or 020 3780 0406.