The recent decision by the SRA to abandon the re-hearing of its prosecution of Claire Matthews, a junior solicitor struck off the Roll by the Solicitors Disciplinary Tribunal in 2020 for acting dishonestly, has been widely welcomed by the legal profession. In this news alert, partner Andrew Pavlovic considers the potential implications of the decision for junior solicitors and firms moving forward.
BACKGROUND
The long-running saga began in 2018 when Claire Matthews, who had been admitted just over six months previously, left a briefcase containing confidential client documents on a train. She spent the following week desperately trying to locate the briefcase, whilst making excuses to her firm about its whereabouts, before ultimately telling her supervisor the truth about what had occurred.
Matthews, who represented herself before the Solicitors Disciplinary Tribunal (“the Tribunal”), gave evidence that she was overcome by “uncontrollable fear, anxiety and panic” and “frozen with dread” by what had occurred, and disclosed that she had been suicidal at the time. Whilst acknowledging that Matthews’ mental state was relevant as to whether a finding of dishonesty could be made against her, Counsel representing the Solicitors Regulation Authority (SRA) pointed out that Matthews had not submitted any medical evidence to substantiate an argument that her decision-making was impacted by a relevant medical condition, a submission endorsed by the Tribunal who found that she had acted dishonestly and that there were no exceptional circumstances to support a lesser sanction than striking her off the Roll.
The case received significant media attention, with a considerable number of commentators arguing that Matthews had been let down by both the SRA and the Tribunal. Shortly after the decision was handed down, the Junior Lawyers Division (JLD) wrote to the SRA expressing concerns that the SRA was not “adequately protecting junior lawyers” and pointing out that it may well have been the case that Matthews, who was working in a call centre and earning £9/hour at the time of the hearing, may not have been in a position to instruct an expert to provide evidence of her mental health. The president of Westminster & Holborn Law Society also pointed to the “inequality of arms” in the case, noting that young solicitors will often not be in a position to instruct lawyers, unlike the SRA who had a “battalion of lawyers”.
The resulting furore was such that several high-profile legal experts offered their pro bono assistance to Matthews in appealing the decision to the High Court. Matthews also raised over £14,000 in crowdfunding to cover her costs in bringing the appeal, including the potential of having to meet an adverse costs order in the event she was unsuccessful.
In the course of the appeal, Matthews provided expert medical evidence regarding her mental state. Having considered that evidence, the SRA agreed in April 2021 to compromise the appeal and agree for the matter to be reheard by the Tribunal with the relevant medical evidence before the Court. Before that re-hearing could take place, the SRA obtained their own medical evidence and, having done so, determined that proceeding with the re-hearing was not in the public interest. Accordingly, the SRA applied to the Tribunal to withdraw the allegations against Matthews, with no order as to costs. Matthews is free to continue to practice, having agreed with the SRA to conditions being placed on her practising certificate.
A CHANGE IN APPROACH?
The SRA’s withdrawal of the prosecution had led to many commentators questioning whether this represents a change in approach to cases of dishonesty involving junior solicitors, particularly where there is a relevant medical condition.
Following the first instance Matthews decision, the SRA published new guidance relating to Heath Issues and Medical Evidence in the course of SRA investigations. The guidance sets out clear requirements for the issues that expert medical reports should address, and also refers to situations in which the SRA may choose to obtain their own medical report, “especially where it would be in the public interest or in the interests of justice to do so.” The Tribunal also published new guidance on Health Issues shortly after the Matthews hearing, stating that, whilst it would usually be the responsibility of the individual respondent to put forward medical evidence, there may be circumstances where the individual is unable to do so, and that in those circumstances the SRA should consider taking the initiative to ensure that relevant medical evidence is before the Tribunal. There is broad agreement that, had this guidance been in place prior to 2020, the Matthews matter would either not have gone as far as it did, or would not have resulted in such a draconian outcome. Indeed, in late 2020, a junior solicitor who was found by the Tribunal to have acted dishonestly, was suspended rather than being struck off and had several conditions imposed on her practicing certificate, including regular health checks.
Although this guidance has been beneficial, on its own it is insufficient to address the core issues at the heart of the Matthews case, and similar cases involving allegations of dishonesty against junior members of the profession. The SRA’s recent guidance on workplace environments has signalled a change of emphasis towards firm culture, which can often a play a crucial role in cases involving junior misconduct. The SRA and firms should also be considering the following:
- Fitness to practise – the ongoing SRA Consultation on Rule Changes on Health and Wellbeing at Work notes that the sector is unusual amongst regulated professions insofar as it does not make explicit provision for limiting the practice of people whose fitness to practise is affected by health issues. The SRA’s proposed amendments to the relevant Authorisation and Suitability Rules would bring the sector closer in line with other regulators such as the General Medical Council and the Bar Standards Board’s, allowing the SRA to impose conditions on a solicitor’s practicing certificate as a result of documented health concerns, whilst also reiterating that it would not be possible for the SRA to strike off or suspend a solicitor from the Roll solely for health reasons. It is hoped that such an approach would cultivate an environment where solicitors can speak up about health conditions they may be suffering, secure in the knowledge that they will be addressed sensitively and in a supportive fashion, ensuring greater transparency and reducing the likelihood of both mistakes being made and such mistakes being covered up.
Importantly, the Consultation seeks to strike a balance between supporting solicitors suffering from a health issue which limits their ability to engage with the SRA in the course of an investigation, and adequately protecting clients and the public. One of the proposed changes relates to an individual’s capacity to engage with the SRA in an investigation or disciplinary process and would provide that, where they are unable to do so as a result of health issues, the SRA may impose conditions on their practising certificate. The subsequent lifting of those conditions may result in the disciplinary process being resumed.
- Defence funding – the Matthews case has also highlighted how an inability to fund legal representation in the Tribunal can result in an unjust outcome. Whilst the Matthews case has eventually had a happy outcome, this was as a result of her pro-bono legal team generously donating their services, and members of the public donating to a crowdfunding campaign. As the Junior Lawyers Division pointed out in their statement last week, “it cannot be the case…that junior lawyers are only able to access a fair process through the generosity of strangers”. Whilst it is now more common for respondents in Tribunal proceedings to have the benefit of D&O insurance, this tends to benefit senior partners and compliance officers rather than junior lawyers. Further thought Is required as to how the “inequality of arms” often present in such cases can be addressed.
It is hoped that the ultimate outcome of this case will mark a shift in the approach of the regulator towards young lawyers suffering from mental health conditions, an area which has undoubtedly seen some improvement in recent years, but which clearly has a distance to go.
If you would like to discuss the impact and implications of this case for firms or individual lawyers, you have any other questions arising from this alert, or for specific legal advice on particular circumstances, please contact our Partner Andrew Pavlovic who specialises in SRA professional discipline and regulatory investigations.
Andrew Pavlovic is recognised by Legal 500 UK 2021 & 2022 as a “Rising Star” in the field of professional discipline, and has substantial regulatory experience, having previously acted for the Solicitors Regulation Authority over several years in complex disciplinary proceedings and subsequent appeals.
CM Murray LLP is Ranked Band 1 and Tier 1 for Partnership Law by Chambers and Partners UK and Legal 500 UK, and is recognised as “one of the legal world’s strongest offerings in this area.”
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