Why are our junior lawyers being struck off?
Seeing all the recent disciplinary decisions involving junior lawyers is really sad. If you read the disciplinary section of these newsletters, you will be be familiar with the issue.
There are two new decisions in the disciplinary section below.
It brings back really uncomfortable memories of my early days in private practice.
I think what is scary is that, deep down, most of us could probably see ourselves tempted to do something similar in the same situation.
Our profession has a terrible habit of creating a culture of fear, causing sensible people to do silly things.
We have been concerned about the “culture of fear” for quite some time (I wrote about it in Legal Futures a couple of years ago).
It has to change.
It is good to see the SRA is at least now looking at the issue of junior lawyers’ well-being. I have long thought that, where toxic work environments clearly have played a factor in dishonest actions, the firm itself should also be properly scrutinised by the regulator. If nothing else, it is an indicator that there could be deeper issues at play.
But a regulatory review is not enough. Law firm leaders must take ownership of this serious issue.
What pressures are our junior staff under?
Do they have someone to discuss problems with?
Do we incentivise the wrong behaviours? (Anyone else remember boiler-room style “settlement races” in fast track defendant PI departments…?).
Should we put a buddy system in place?
Have we ever trained the staff on what constitutes dishonesty?
How has lock-down and working from home affected attitudes to risk and compliance?
But aside from the regulatory issues, nobody should be in a position where they are so scared to admit mistakes that they are prepared to jeopardise their career.
Schrems II is huge, but what does it mean for law firms?
On 27 July the ICO issued an updated statement on the judgment of the European Court of Justice in the Schrems II case.
You are probably aware of the potentially explosive nature of the decision, arising out of an EU citizen’s data protection claim against Facebook.
Schrems II effectively strikes down the ‘privacy shield’. This was the temporary legal arrangement intended to ensure uninterrupted data flows between the EU and USA, the latter having far weaker data protection laws by default.
So now what?
This is one of those issues that is simply too big for us mere mortals to be concerned about until we are told otherwise. The fact that the ICO has not yet decided what needs to happen is evidence of this.
The issue of international data flows is also tangled up with the ongoing (for now) Brexit negotiations.
All we can do is try and understand what our potential exposure is.
Whoever is responsible for data protection in your firm – and there should be someone – needs to revisit their register of data assets. Remember that exercise you did when the GDPR was just vague dot on the horizon? Take that out and see what has changed. Identify where there are international data flows. Perhaps you have overseas offices or instruct foreign advisers on behalf of clients. Maybe you use cloud storage or third party client portals – where are the data centres?
Firms need to understand where their data goes, so that when the ICO does give its full guidance they are ready to take action.
SRA to slash client protection
Despite heavy opposition, our regulator has seen fit to press ahead with plans to reduce the Compensation Fund from £2million to £500,000, in a move that is sure to make many of us uncomfortable.
The Compensation Fund is the last resort when things go terribly wrong and losses are not covered by insurance.
In practice, a small number of clients claiming on the fund in the future (around 0.2%) will not be fully compensated for their solicitor’s dishonesty or insolvency.
To put that into context, the fund would have saved around £10million had the upper limit been £500,000 over the past decade.
That’s £10million of client money lost forever.
It seems odd that a public interest regulator would push this through quite so aggressively.
Particularly when you consider that one of the overarching regulatory objectives, which the SRA is legally required to uphold, is “protecting and promoting the public interest”.
The Legal Services Board still has to approve the SRA’s plan. I hope they strike it down, as they did with the other crackpot initiative to reduce insurance cover to £500,000 in 2014.
Guidance
Question of the week
“Do we have to delete data about non-clients in our database, if requested to do so?”
This is one of those that you think should be obvious, or at least common sense. We know this is a data protection issue. Solicitors are rightly cautious about deleting information, not least because it could well be relevant in future claims or regulatory issues.
But does this apply to a non-client?
Under Article 17 of the GDPR individuals have the right to have personal data erased. This is also known as the ‘right to be forgotten’.
According to the ICO, the right is not absolute and only applies in certain circumstances. Individuals have the right to have their personal data erased if:
- the personal data is no longer necessary for the purpose which you originally collected or processed it for;
- you are relying on consent as your lawful basis for holding the data, and the individual withdraws their consent;
- you are relying on legitimate interests as your basis for processing, the individual objects to the processing of their data, and there is no overriding legitimate interest to continue this processing;
- you are processing the personal data for direct marketing purposes and the individual objects to that processing;
- you have processed the personal data unlawfully;
- you have to do it to comply with a legal obligation; or
- you have processed the personal data to offer information society services to a child.
Our view is that in this situation you should:
- respond to the individual saying that under Article 17 of the GDPR their right to be “forgotten” is limited to processing of data for direct marketing purposes and you have a legal obligation to keep the data; and furthermore you have ensured that none of her personal data has been retained for direct marketing;
- then retain the data in line with your data retention policy.
Disciplinary decisions
- Parminder Kaur Dhillon rebuked for sending confidential client information to a personal Hotmail account, and trying to limit employer’s duty to report to the SRA as part of a settlement agreement.
- Katherine Gilroy, an “overwhelmed” NQ, struck off for concealing errors and covering up orders against her client.
- Mahesh Chouhan suspended for allowing a struck of solicitor to practise through his firm.
- Alan Joseph Fitzpatrick struck off for trading for 5 years in a precarious financial position, and withholding professional disbursements to prop up the practice.
- Geoffrey Howard Julian Critchlow fined £10,000 for inappropriately touching a junior colleague in a wine bar whilst drunk.
- Charles Jerome Darby fined for using offensive homophobic slur.
- Amy Hannah Whiting, a paralegal, banned from the profession by s43 order for dishonestly covering up a mistake (failing to send out an updated plan in a property transaction)
