Solicitor
Disciplinary proceedings - Professional misconduct
Deputy Chief Legal Ombudsman v French: Queen's Bench Division, Administrative Court (London) (Mr Justice Wyn Williams): 18 January 2012
Section 149 of the Legal Services Act 2007 provides, so far as is material: '(3) Where an ombudsman certifies a failure to the court under subsection (2), the court may enquire into the case. (4) If the court is satisfied that the defaulter has failed without reasonable excuse to comply with the requirement, it may deal with - (a) the defaulter, and (b) in the case of a body, any manager of the body, as if that person were in contempt.'
The defendant practised as a solicitor. In December 2010, a written complaint was made to the defendant's firm by a client, B. In February 2011, the Solicitors Disciplinary Tribunal (the SDT) conducted a hearing into other complaints received regarding the defendant and he was suspended indefinitely from practising as a solicitor. In March, B complained to the Legal Ombudsman (the Ombudsman) having not received any response from the firm.
The complaint was accepted for investigation. Between April and July, the investigator employed by the Ombudsman to investigate the complaint contacted the firm by telephone and email on several occasions but did not receive any substantive response. A conduct referral was made to the Solicitors Regulation Authority (SRA). On 18 July, the Ombudsman issued a notice under section 147 of the Legal Services Act 2007 (the notice). The notice was addressed to the defendant personally and required him to provide specified information and documents relating to B's complaint by 29 July. The defendant failed to respond and the Ombudsman made a further conduct referral to the SRA.
In October, the SRA ordered that an intervention take place in respect of the firm, which had the effect of involving another firm of solicitors in the affairs of the firm. That firm were able to provide most, if not all, of the documents sought in the notice within days of being appointed. In November, the claimant issued proceedings under section 149 of the act, inviting the court to 'enquire into the case' pursuant to section 149(3) and to 'deal with' the defendant pursuant to section 149(4) for his failure to comply with the notice.
The principal issue that fell to be determined was what sanction ought to be imposed by the court for the admitted default on the part of the defendant in failing to comply with the notice. In mitigation, the defendant: (i) unreservedly apologised for his conduct and accepted that it had been totally unacceptable; (ii) offered no excuse for his conduct save to suggest that by 2010 in particular, the pressures in his personal and professional life were such that he was unable to cope; (iii) was frank about his current state regarding both personal and professional matters, including the inevitability of his being struck off as a solicitor and his marital situation. A preliminary issue arose as to the jurisdiction of the court, namely, whether the fact that the defendant had been suspended from practice in February 2011 before the proceedings had been commenced affected the jurisdiction of the court to deal with the defendant.
The court ruled: (1) The Ombudsman scheme applied to solicitors in circumstances where the underlying conduct about which a complaint was made took place at a time when the solicitor was in practice. In the instant case, the underlying complaint had been made at the time the defendant was still in practice, in December 2010. Although the complaint which had triggered the proceedings occurred after the defendant had been suspended as a solicitor, the jurisdiction of the Ombudsman and therefore the court had depended on a complaint having been made regarding acts or omissions occurring at the time that the defendant was a practising solicitor. There was no doubt that a proper interpretation of section 128 of the act allowed both the Ombudsman to have jurisdiction and the court to take action regarding the defendant’s failure to comply with the notice.
(2) The defendant’s default was such that a sentence of imprisonment would be justified. It was simply not acceptable for a solicitor to behave the way the defendant had. Imprisonment would be justified in order to bring home to the defendant and other solicitors who might find themselves in a similar position that they should not ignore matters of such importance. By way of mitigation, the court noted the defendant’s age and continuing personal difficulties and the fact that over very many years before about 2009 he had practised successfully and with propriety as a solicitor. Taking account of all those factors, which were essentially personal to the defendant, it was appropriate to suspend the sentence of imprisonment. Having regard to similar cases and taking account of the fact that the defendant had admitted the default with a full apology the appropriate sentence would be one of four months' imprisonment.
A sentence of four months' imprisonment would be imposed, suspended for 12 months. Legal Ombudsman v Young [2011] All ER (D) 144 (Nov) considered.
Anthony Rich of the Legal Ombudsman for the deputy chief Legal Ombudsman; the defendant appeared in person.
