This week the Administrative Court handed down judgment in three appeals by the Solicitors Regulation Authority: SRA v Sovani James, SRA v Esteddar MacGregor, SRA v Peter Naylor  EWHC 3058 (Admin). Reactions to the judgment by lawyers have been critical, regarding it as a harsh decision which missed an opportunity to reflect developing attitudes to wellbeing in the workplace.
Rather than focusing on the regulatory/disciplinary aspects of the cases, I would like to offer a different perspective, and to suggest that it is possible to derive considerable optimism from the judgment about progress in wellbeing for lawyers.
In each of the three cases the Solicitors Disciplinary Tribunal had found that a solicitor had been dishonest, such as by misleading the client or the firm, or in assisting in a fraud and its subsequent concealment. However, it held that the mental health of the solicitor, related to work pressures, was an exceptional circumstance which justified a lesser sanction than striking off.
In the case of Ms James, the SDT found that the firm was a challenging place to work. The senior management sought to pass pressure on to junior staff such as Ms James, with monthly publication of league tables to create competition between fee-earners. The SDT was particularly critical of an email from a senior manager complaining about a shortfall of Ms James’ billed hours as against her target and a letter from the senior partner to Ms James in requiring her to work evenings, weekends and bank holidays to make up chargeable hours. The SDT found this was a “notable example of bad, ineffective and inappropriate management.”
The SRA appealed each of these decisions of the SDT, arguing that striking off was the appropriate sanction in each case. The Administrative Court of Flaux LJ and Jeremy Baker J agreed.
What did for each of the solicitors was that:
- the SDT found that the solicitor had acted dishonestly notwithstanding their workplace pressures and mental health issues: his/her “mindset” was one of dishonesty;
- as Flaux LJ noted, the SDT made a specific finding that, despite any mental health issues, each of them knew the difference between honesty and dishonesty and knew that what he or she was doing was dishonest. Dishonesty involves conscious and deliberate wrongdoing;
- the court concluded that on the authorities, “exceptional circumstances” focused on the extent and nature of the dishonesty, rather than on matters of personal mitigation; each of the cases involved repeated dishonesty rather than an isolated instance.
I suggest that in fact that those concerned with wellbeing in the legal profession can derive some considerable cause for optimism from the judgment.
In the first place, the judgment did not rule out a solicitor being able to rely on mental health or wellbeing issues in disciplinary proceedings:
- as noted above, in these cases, the SDT had made specific finding about the mindset of the solicitors, that they appreciated that what they were doing was dishonest; in an appropriate case it might be found that the solicitors mental health was such that they did not have that appreciation; therefore as Flaux LJ stated: “whilst the mental health and workplace environment issues in any given case will not be a “trump card” in assessing whether there are exceptional circumstances, they can and should be considered as part of the balancing exercise required in the assessment or evaluation of the dishonesty”;
- the Court regarded dishonesty as a thing apart, but recognised that “pressure of work or an aggressive, uncaring workplace could excuse carelessness by a solicitor or a lapse of concentration or making a mistake”;
- the court accepted that pressure of work or extreme working conditions were obviously relevant, by way of mitigation, to the assessment which the SDT has to make in determining the appropriate sanction (albeit that these could not of themselves amount to exceptional circumstances in a case of dishonesty).
Secondly, the weight given to wellbeing in in the decisions of the SDT and in the judgment of the Administrative Court powerfully demonstrates how far the issue has moved up the agenda. It is difficult to imagine that even a short time ago it would have been plausibly considered that the cases could be defended on grounds relating to mental health and workplace pressure. An article by regulatory/disciplinary specialist Paul Parker, described this as an era “when well-being in the workplace is so much, and rightly, to the fore.”
Thirdly, the cases have shone a powerful spotlight on the issues. It has been reassuring to note how commentators have almost universally criticised the treatment of the solicitors by their firms, in place of the dispiriting comments one sometimes encounters about how the solicitors should just accept and be able to deal with such pressures. Attitudes to wellbeing for lawyers are changing.
Finally, and perhaps most importantly, the judgment and the caselaw which it cited emphasised the primary objective of regulation in maintaining public confidence in the profession. To promote wellbeing for lawyers, we need to have the public on our side, to understand the intrinsic importance, but also the benefit to clients, of their lawyers’ wellbeing. It would, in my view, seriously damage that mission if the public was given any cause to consider that wellbeing could be used to excuse dishonesty by lawyers, to the detriment of clients.
Instead, we should focus on lessons which could be learned from the circumstances of these cases:
- they illustrate the importance to wellbeing of the culture and expectations in legal organisations, and the drastic consequences if these are not carefully nurtured; the responsibility of management at all levels is clearly demonstrated;
- I infer that the lawyers in question must have felt that they had no other way out of their predicaments than the drastic measures they took. There is so much that companies, firms and sets of chambers can do to make sure that their lawyers do have options. For instance: having a wellbeing policy that the individual lawyer can cite to justify taking issue with their unsupportive treatment; having available a confidential outlet for discussion or seeking help, such as through an employee assistance programme;
- the message should always be that mistakes can usually be dealt with if help is sought, but ignoring them can be very dangerous, and dishonesty is very likely to be career ending. I recommend a wise and invaluable post on this topic by barrister Gordon Exall’s Civil Litigation Brief;
- as some other commentators have noted, the SRA’s appeals focused on the conduct of the individual solicitors; that is only one half of the equation, when the facts of the cases demonstrate the links between the role of management and the conduct of the individuals. The SRA Handbook, for instance in chapter 7, on the management of the business, requires the achievement of outcomes such as clear and effective governance structure and reporting lines, training individuals to maintain appropriate competence, and regular checking of work. I would respectfully suggest that it might be time for all regulators of professionals to consider whether it would be appropriate to introduce express requirements relating specifically to wellbeing of individuals.
A version of this article was first published on the Wellbeing at the Bar website. Please consider visiting the website for its invaluable materials on wellbeing for lawyers.
This article is not to be relied upon as legal advice.
16 November 2018