Professional Discipline Update: Dishonesty matters - interpretations by the STD leads to criticism by the High Court

The Respondent was a practising solicitor in The Mountain Partnership in London. In early 2015, the respondent met Mr K, a Ghanaian national, and gave him some free advice about his immigration status. Despite a memorandum from the senior partner instructing him not to accept any more cases without permission, when Mr K was detained in July 2015 in respect of his immigration status, the Respondent visited him. Mr K was due to be removed from the UK on 28th July 2015, on the 16th a Letter of Authority was completed by Mr K and the Respondent appointing the Mountain Partnership as the solicitors. Further correspondence between the Home Office and the Respondent was done using Mountain Partnership letterheads and the words ‘our client’ was used. Mr K was released on bail.

A meeting was then held between the parties where a fee was put forward of £1,500 with £500 paid on account. The Respondent’s personal bank details were used and the £500 was paid into his personal bank account. The Respondent disputed this and claimed that he acted pro-bono and that the £500 had been for disbursements. An SRA investigation into the Respondent’s conduct saw him respond to SRA questions where he stated that he had not received costs nor any payment into his personal bank account. The Respondent's bank statements showed that this money was received into his account. During the course of the hearing, it was accepted by the SDT that £205 of this sum went towards legitimate disbursements. However, on day 1 of the hearing the Respondent stated that a further £350 was spent on an oral application for judicial review. An overnight investigation showed that the application was never made.  The Respondent had to retract this statement and said that the money was spent on taxis.

SDT Decision

It was held by the SDT that Mr K was a client of the Mountain Partnership, but monies were paid directly into the Respondent’s personal bank account, and this constituted a failure to adhere to the high standards expected of a member of the solicitor’s profession.

In applying the test in Ivey v Genting Casino they held that the Respondent had a genuine intention to assist Mr K: although his belief in acting privately was misguided he did not act as part of a deliberate course to deprive the firm of that which they were entitled. This was not dishonest by the standards of ordinary and decent people.

It was also held that in not responding truthfully to the SRA’s questions he was not acting dishonestly as he was not trying to “hoodwink” the SRA and was not acting dishonestly by the standards of ordinary and decent people.

Decision of the High Court

It was held that there was an error of law in that the SDT had not found dishonesty, and in any event, the SDT had applied the wrong test of dishonesty.

The fact that the Respondent had a deep and misguided belief he was acting privately was also held to be contrary to the evidence and a reasonable tribunal would not have reached that conclusion due to the volume of paperwork listing the partnership as solicitors to Mr K.

Lord Justice Flaux stated that if the SDT accepted that the respondent knew either all or part of the money he received was costs, and that it should have been paid into the firm, this conclusion could only be consistent with him being dishonest.

The court also found that the SDT had reached conclusions on dishonesty by applying an irrelevant gloss to the Ivey test by considering the intentions of the Respondent. It was suggested that if this gloss was removed, they would have come to a different conclusion.

Finally, the court stated that if the SDT accepted that the answer given by the Respondent to the SRAs questions were untrue, this must be an unqualified finding that he lied and misled the regulator.

The only appropriate sanction was striking off the Roll, which was not a decision appropriate to be remitted back to the tribunal due to its previously erroneous findings. The Court substituted a sanction of striking the respondent off the roll of solicitors.

The final decision of the SDT was full of contradictions. Fundamentally they seem to have missed that not only did the solicitor withdraw evidence while his hearing was ongoing, he also acted in direct contravention of his arrangement with the managing partner of the firm, in that he worked for and in contravention of the SRA accounts rules by receiving money into his personal bank account. He further claimed that money was for expenses which he could not substantiate, and failed to fully disclose matters to the SRA in their investigation.

This is a clear case of ongoing and fundamental dishonest conduct which any member of the public would rightly consider to be wholly inappropriate behaviour by a member of a regulated profession. Bearing all of the above circumstances in mind, the decision of the High Court to remove the Respondent from the roll was inevitable. Click here to download a copy of the judgment in full.