A new frontier in the boundary between professional and private life – solicitors’ undertakings
Decision date: 18 July 2012
Is erasure from the Roll of Solicitors an appropriate sanction where dishonesty has not been found but manifest incompetence has?
The appellant was a solicitor admitted in 1998, and in 2006 he began operating a firm where he was the sole practitioner. The allegations he faced before the Solicitors Regulation Authority (SDT) were twofold; firstly in relation to conduct in holding out two individuals as partners at his firm; the second relating to breaches of the Solicitors Accounts Rules. The first allegation formed the basis of the appeal, specifically the sanction of erasure.
It was alleged that the appellant had misled a mortgage lender. In May 2006, the appellant applied to the Law Society for an individual to become a partner at his firm, and subsequently he submitted a panel application to a building society with an application form signed by the proposed partner. That individual gave evidence that he had considered becoming a partner but had in fact declined and informed the appellant’s wife of such.
The appellants account at the Tribunal was that he sent the form to the proposed partner and it was returned signed, therefore not dishonest. The Tribunal rejected the allegation of dishonesty, but went onto sanction stating that the appellant had sought to ‘mislead’ a mortgage lender by holding out an individual as a partner at his firm.
He appealed on the basis that the tribunal sanctioned him on the basis of dishonesty despite no finding of such.
The Court noted that it was evident that the Tribunal had indeed sanctioned on the basis of a their being an element of dishonesty. The Court therefore took steps to reconsider the appropriate sanction on the basis of incompetence.
The Court noted that the trustworthiness of a solicitor extends to standards which the public were entitled to expect from solicitors which included competence (Bolton v Law Society  1 W.L.R 512 and Weston v Law Society Times; July 15 1998).
The Court concluded that the appellant had demonstrated manifest incompetence, and therefore the only appropriate sanction in this case was to strike him from the roll.
J Bean also noted obiter that the appellant did not give evidence in the tribunal despite the gravity of the allegations he faced. Although he was entitled to take such a course, the Judge urged the Solicitors Regulation Authority to review its practice to be up to date with both civil and criminal courts, where it is possible for them to take into account such a failure.
This case demonstrates that not only is dishonesty on the part of a solicitor almost inevitably incompatible with continued registration, so is manifest incompetence. Such must be the position to maintain public confidence in that individual. Further, will more regulators respond to this call for formally taking into account a failure to attend or give evidence? Would the public expect a professional man to given an account of his actions?
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