Three solicitors have been struck off in quick succession for strikingly similar offences: misleading their clients about the progress of their case.

Andrew Mark Brett ‘repeatedly’ misled a client over the progress of professional negligence litigation. He pretended that court proceedings and hearings were in progress, knowing that not to be the case. The client’s claim was eventually struck out due to the solicitor’s inaction.

Lesley Wilkinson was similarly struck off for misleading clients about their personal injury cases. Over a three year period, the solicitor strung the clients along when she knew the cases had been struck out. The clients were only alerted when bailiffs appeared to enforce a costs order against them.

Albert Saul Bargery was struck off for forging a court order and email to cover lack of progress on a low value Japanese knotweed case. When the client complained about slow progress, the solicitor (presumably to buy some time) produced a fabricated order purporting to compensate the client. When the client chased for his damages, the solicitor compounded the lie by producing a falsified email showing that he had chased the other side for payment.

Principles

It is of course a serious breach of professional ethics to lie to your client – or indeed anyone in connection with your practice. The SRA codifies the core professional duties. The most relevant here are acting:

• in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice;
• in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons;
• with honesty;
• with integrity;
• in the best interests of each client.

A finding of dishonesty on its own will almost certainly result in a strike off decision – there would have to be exceptional circumstances to depart from that (Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin)). This is because solicitors are “trusted to the ends of the earth” (Bolton v Law Society [1993] EWCA Civ 32).

An example of this in practice is the newly qualified solicitor who was struck off for fare dodging, failing to swipe in over a three month period. It was established that the loss to the train company was around £650, which was subsequently repaid by the solicitor. Not exactly crime of the century. However, the tribunal found his behaviour to be dishonest and deliberate, demonstrating a lack of integrity. That was enough to end a career.

So why do solicitors get tempted to mislead their clients?

Returning to dishonesty in litigation case handling, there are probably several reasons why a solicitor may try to pull the wool over their client’s eyes.

They may just be a bad apple, incompetent, or both. Maybe sometimes that it is the case, but it is more likely to involve more complex factors, such as:

• A heavy and unpredictable caseload. Litigation can be stressful on many levels, but one of the most common is the unpredictability of proceedings. One case might settle relatively quickly, whilst another may involve complicated points of law, multiple parties and witnesses, and time intensive hearings and submissions (to name a few). Litigators can usually handle more than one ‘big’ case, but what happens when others become unexpectedly demanding? This can be compounded where the solicitor’s caseload is high, leaving little room to breathe.
• Multiple demands. The client is just one ‘stakeholder’ that litigators have to deal with. Courts, other parties, witnesses, experts and even their own employers need to be kept at bay. All the while, there may be other urgent directions and deadlines to be met on separate cases. It is easy to see how facing demands from all sides can result in a feeling of drowning.
• Mental health. The knock-on consequence of the demands of litigation can be the personal impact on solicitors. It is a stressful job. Sometimes that boils over to unmanageable levels, leading to anxiety, depression and other conditions where it might become tempting to take the path of least resistance. Disciplinary tribunals are often presented with medical evidence.
• Competence. Less experienced lawyers thrust into busy departments can sometimes sink. Particularly if there is not much support available, everyone else having their own caseloads to worry about.
• Pride. Asking for help and admitting mistakes doesn’t come easy for some people. It comes with the risk of looking weak or incompetent in a traditionally competitive profession. By the time these people realise they are out of their depth, it may be too late.
• Lack of supervision and support. We find ourselves working in a more remote environment than ever before and many working routines have not returned to ‘pre-covid’ practice. This may be more difficult for those new to the profession as there is possibly less chance to learn through osmosis in the office environment. Without the eyes and ears of others in the office, it could be easier to start down the road of deceit thinking that no-one may notice.

None of these excuse dishonest conduct. But it only takes a little empathy to understand how it would be tempting to placate a demanding client, telling them what they want to hear.

Once the lie is made however, there is no way to roll back from it. If you hold your hands up, the firm will be obliged to report you to the regulator and the misconduct will be career-ending in any event. So, the lie gets repeated and compounded until it is discovered.

What can law firms do?

Individuals are, quite rightly, culpable for their own professional conduct. Where a solicitor falls short of the expected ethical standards, and are caught, they will face the consequences.

But employers are also expected to take steps to reduce the risk of poor ethical decisions. COLPs and ‘managers’ (partners or equivalent) are potentially in the regulator’s firing line if there are systemic or cultural issues which contribute to conduct issues.

With that in mind, there are some things that law firm leaders should consider:

• Avoid having a ‘toxic’ working environment – a hot topic for the SRA of late, with good reason. Workplaces that condone or fail to challenge bullying, harassment, discrimination, and poor management are at risk of pushing colleagues towards unethical behaviour. The latest guidance suggests that managers should ‘immediately’ intervene to challenge behaviour that fails to treat colleagues with dignity and respect. Are unrealistic billing targets contributing to undue stress and pressure?
• Support – everyone is busy, everyone has deadlines, things need to be done. But it is imperative that front line colleagues are not left to flounder or feel isolated, particularly when the pressure is on.
• Supervision – every legal service needs to be properly supervised, even more so with less experienced file handlers. That is not to say that experienced solicitors never make poor ethical choices (they do – see the cases referred at the outset of this post). So, it is important that more than one person has eyes on live cases. File reviews, case updates, open chat channels etc. can all form part of the supervision picture. Some firms make space for ‘mental block files’ in department meetings, specifically to weed out the hard-to-progress cases. This can work really well when approached in a collegiate, non-judgmental way.
• Visibility –can you actually see what is going on in any one case? Whilst case management systems can provide an oversight, if not all staff are uploading emails and documents to the system and client file maybe you don’t have the full picture. We often come across firms where the majority of the ‘file’ sits within a solicitor’s inbox.
• Case load management – regular discussions need to be had with staff about how they are coping with their case load. What may have been relatively light one week, could potentially become a lot heavier very quickly with deadlines all coming at the same time. Can support resource be reallocated from elsewhere in the firm? Do you need to recruit?
• Signposting – organisations such as LawCare and The Solicitors’ Charity are available to anyone who is not coping. People often do not wish to speak to work colleagues about their problems, but an outside ear may give them just the support and perspective they need. It is worth making sure everyone in your team knows that these services exist.