Legal profession: dishonesty: penalties: professional conduct: striking off
The appellant Law Society appealed against a decision ([2008] EWHC 889 (Admin)) setting aside an order of the Solicitors Disciplinary Tribunal (SDT) that the respondent (S) be struck off the roll of solicitors and substituting an order for three years’ suspension.
S had been appointed as a clerk to the trustees of a school. S received payment for his services and further payment for any legal work which he undertook on behalf of the trustees. The trustees would write a cheque at S’s request. A cheque was made out in favour of S, but he altered it so as to receive a further £1,000. S was subsequently convicted of obtaining a money transfer by deception. The matter was referred to the Law Society.
The tribunal accepted that S was entitled to the additional money but held that S’s dishonest conduct was likely to bring the solicitors’ profession into disrepute and that the appropriate sanction was to strike S off the roll of solicitors.
On appeal, the Divisional Court held that the sanction was a disproportionate measure. The Law Society submitted that the Divisional Court’s decision was inconsistent with authority and the court had erred in identifying S’s case as an exceptional one. It argued that S’s conduct in tampering with a cheque in favour of himself so as to increase the amount payable by £1,000 was a serious act of dishonesty and that such conduct should attract the normal sanction for dishonesty, namely striking off.
Held: The statements of principle relating to sanction for professional misconduct set out in Bolton v Law Society [1994] 1 WLR 512 CA (Civ Div) remained good law, subject to a qualification that, in applying the Bolton principles, the SDT had to take into account the rights of the solicitor under article 6 and 8 of the European Convention on Human Rights 1950, Bolton applied, and Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915, Preiss v General Dental Council [2001] UKPC 36, [2001] 1 WLR 1926, Langford v Law Society [2002] EWHC 2802 (Admin), [2003] 153 NLJ 176, Burrowes v Law Society [2002] EWHC 2900 (QB), Nahal v Law Society [2003] EWHC 2186 (QB) and Bultitude v Law Society [2004] EWCA Civ 1853, the Times January 14, 2005 considered.
However, it was an over-statement to say that a very strong case was required before the court would interfere with the sentence imposed by the tribunal. The correct analysis was that the tribunal comprised an expert and informed tribunal, which was particularly well placed in any case to assess what measures were required to deal with defaulting solicitors and to protect the public interest.
Nevertheless, if it was satisfied that the sentencing decision was clearly inappropriate then the court would interfere. In the instant case, the Divisional Court has fallen into error in holding that there were exceptional facts which brought the case to the very bottom of the scale of dishonesty. The court also had erred in concluding that the case fell into the very small residual category where striking off was not appropriate.
On the contrary, the instant case was a case of serious dishonesty by the solicitor where the normal consequences should follow, If a solicitor was entitled to payment for work which he had done, the proper course was to inform his client of that work and to request payment. To secure payment by tampering with a cheque previously signed by or on behalf of the trustees was a gross breach of professional conduct.
Solicitors were, as a matter of routine, entrusted with large sums of money and if a solicitor abused his right of access to those funds, that was a breach which undermined public confidence in the profession in a vital respect. The tribunal had properly taken into account the particular circumstances of the case and its decision was correct.
However, even if the case was on the borderline, the Divisional Court was not entitled to interfere with the sentence imposed. It ought to have paid proper respect to the decision of the tribunal. The Divisional Court could not be satisfied that the sentencing decision reached by the tribunal was clearly inappropriate. Accordingly, the order for striking-off was reinstated.
Appeal allowed.
Law Society v Brendan John Salsbury
Law Society’s Gazette: 11.12.2008
