The recent decision of the Solicitors Disciplinary Tribunal (SDT) to strike off Claire Matthews, a junior solicitor, after she left a locked briefcase on a train containing confidential client documents, concerned many within the legal profession. On 28 May 2020, the Law Society Gazette reported that the Solicitors Regulation Authority (SRA) had defended its decision, in a letter to the Junior Lawyers Division (JLD).
In this blog, we look at why so many in the profession thought the decision was harsh and whether their concerns about the decision are justified. We also briefly consider the implications of the new Solicitors (Disciplinary Proceedings) Rules 2019 in tribunal proceedings generally.
The facts of the Claire Matthews case have been well publicised but, by way of summary, she had been working for Capsticks, a solicitors’ firm, for less than a month, when, on 24 May 2018, she left a locked briefcase containing sensitive and confidential client papers on the train on the way home. The briefcase belonged to her colleague. Ms Matthews initially stalled for time in the hope that the briefcase would be found and returned, but unfortunately it was not. The tribunal found that on 31 May 2018, Ms Matthews had told her colleague that the briefcase was in her flat and that she would return it. One week after the incident, Matthews confessed the full truth about how and when the briefcase came to be lost. The SDT concluded that Matthews had been dishonest as well as in breach of principles 2 and 6 of the SRA Principles 2011, which relate to integrity and acting in a way which maintains the public’s trust in the profession. In addition to being struck off, Matthews was ordered to pay costs of £10,000, a figure which was reduced from an eye watering £55,000 claimed by the SRA.
The legal profession’s response to the tribunal decision
Many solicitors appear to have considered the decision to strike off Ms Matthews from the solicitors’ roll, and thereby ending her legal career, to be extremely harsh, given that there were many mitigating factors. For instance, Ms Matthews reportedly suffers from a long-standing mental health condition and told the tribunal that she had been “overcome by uncontrollable fear, anxiety and panic” in the days following her mistake.
Many concerns were raised about the fact that Ms Mathews was not legally represented at the tribunal. She only qualified as a solicitor in September 2017. As a junior lawyer, she did not have the experience or expertise to defend her position at a professional disciplinary tribunal. The feeling of some professional disciplinary lawyers was so strong that a campaign was launched on Twitter to assist her with her appeal. She is now represented by Leigh Day and the barristers Mary O’Rourke QC and Rosalind Scott Bell. The fact that a QC is now on board highlights what Ms Matthews was up against when she originally dealt with her case on her own.
The SRA’s letter to the Junior Lawyers Division
The Law Society Gazette published extracts of the SRA’s letter responding to the JLD’s criticism on 28 May 2020. Among other things, the SRA commented that:
“In this case, it is easy to lose sight of the fact that this is not about a solicitor leaving a briefcase on a train, but that the evidence of her colleagues was that she lied to them on a number of occasions about the matter.”
This is, of course, a key point. Allegations of dishonesty made against any professional will risk that professional’s career. This is so for all professionals, including veterinary surgeons, doctors, nurses, surveyors and architects. For solicitors, all of whom are officers of the court with an overriding duty to the rule of law and the administration of justice, honesty and integrity is paramount. The SDT reiterated Lord Bingham’s comment in Bolton v Law Society that a severe sanction against those found to have acted dishonestly was essential to:
“… maintain the reputation of the solicitors’ profession as one in which every member of whatever standing may be trusted to the end so of the earth.”
There have been several recent instances of junior lawyers being struck off for dishonesty.
Michael Freeman was struck off by the SDT for lying to his City employer about passing an insolvency exam. Mr Freeman did not sit the exam, but in January 2017 told his employer that he’d passed it, and repeated the lie “on a several number of occasions”. Another case which attracted much publicity was that of Sovani James, a young solicitor who backdated correspondence to make it appear that she was progressing a file when she was not. The SDT originally imposed a suspension, accepting that her working environment was “toxic”. However, following an appeal by the SRA to the High Court, the sanction was overturned and Ms James was struck off.
Mr Emele, an unregistered barrister, was disbarred from the Bar of England and Wales at an independent disciplinary hearing, following charges brought by the Bar Standards Board. Mr Emele made false declarations as part of his application to be called to the Bar.
Each of these cases makes for hard reading about a promising junior career ending abruptly because of a naïve mistake. It is impossible not to wonder whether a stronger mentor or a better support network may have prevented the professional’s demise. Honesty and integrity in the profession must be regulated and protected in order to maintain the public’s trust and confidence. In cases where client money has been stolen by a solicitor, most would agree that they should be struck off. However, would the public concur that the actions of Ms James and Ms Matthews had to result in the ultimate sanction, especially bearing in mind the mitigating factors, including in particular their mental health?
The Matthews SDT judgment is being appealed on several grounds, including a failure properly to consider the impact of the incident on Ms Matthew’s mental health. Ms Matthew’s is also arguing that the strike off decision was too harsh and the tribunal failed to take into account a number of factors such as her previous good character, the fact that she made no financial or professional gain, and that it was an isolated incident. There can be little doubt that these points would have been raised and made forcibly at the original hearing if she had had legal representation. The outcome of the appeal will be followed closely by the solicitors’ profession.
The new rules
The new Solicitors (Disciplinary Proceedings) Rules 2019 introduce a number of changes, most notably to the standard of proof, which has been lowered from the criminal standard to the civil standard. Another important change is that the tribunal has been afforded additional time in order to decide whether there is a case to answer. It has been extended from three to six months.
The criminal standard of proof requires that the tribunal’s decision is made beyond all reasonable doubt whilst the civil standard requires that the decision is made on the balance of probabilities. In the Matthews case, the previous (criminal) standard of proof applied and it will apply to all SDT proceedings issued prior to 25 November 2019.
The SDT consulted on the proposed change to the standard of proof during 2018. Despite a rather underwhelming lack of support (with only eight out of 28 respondents advocating the change), the tribunal announced in April 2019 that it intended to move to applying the civil “balance of probabilities” standard of proof. The Law Society also warned against an increased risk of miscarriages of justice, particularly where the potential consequences were career-ending. It also raised the issue in light of an imbalance in resources between the SRA as regulator, and individual solicitor respondents who are often without insurance cover for the costs of defending the disciplinary proceedings or paying the SRA’s costs if they lose. There are also concerns about the additional stresses on practitioners who will undoubtedly feel more vulnerable.
Historically, the standard of proof used by professional bodies varied. However, there is now an overwhelming trend towards tribunals adopting the civil standard. The Royal College of Veterinary Surgeons and the Farriers Registration Council are two bodies still applying the higher standard, but the former has recently released proposals to fall into line with other regulators and adopt the civil standard.
Recently, the number of allegations proved before the SDT when applying the criminal standard of proof has been extremely high. Logically, now that the lesser civil standard applies, that figure is going to increase. Allowing the tribunal additional time in order to decide whether there is a case to answer by extending it from three to six months, will inevitably result in increased stresses. Although the obvious answer is not to fall foul of the rules, it is crucial that individual practitioners ensure that they seek advice from an experienced legal team at the first opportunity so as to ensure the best possible outcome should they be faced with a professional disciplinary investigation.
The Claire Matthews case generates a number of talking points. The fact that she now has a heavyweight legal team behind her acting free of charge indicates that it strongly believes that the outcome would have been different had Ms Matthews been legally represented before and at the hearing. The criminal standard of proof applies in the Matthews case. The civil standard of truth will apply to SDT proceedings started after 25 November 2019. This will result in more tribunal decisions being made against solicitors.
Balancing the interests of professionals’ and the interests of consumers using them is a difficult issue. On the one hand, the regulator needs to safeguard clients from those few professionals who abuse their position and ought not to be practising. On the other hand, it is crucial to ensure that any allegations made against a professional are robustly investigated. A finding made at a disciplinary tribunal can ultimately lead to a professional losing their livelihood. For young and inexperienced professionals, this can be particularly devastating.