‘Reporting the issues and co-operating with us could constitute significant mitigation,’ says the SRA’s whistleblowing charter, which dates from 2012.
That assurance was to prove empty for trainee solicitor Emily Scott, struck off after waving a red flag at the regulator over misconduct at her law firm. Scott’s deeply unfortunate predicament has prompted uproar among some Gazette readers. They protest that while personally culpable, she acted under extreme duress and yet still had the courage to speak up.
Scott deserves sympathy, and not only for being in the wrong place at the wrong time. However, it is a stretch to argue that the SDT’s decision is inconsistent with the charter. This also states that whistleblowing is more likely to constitute mitigation ‘at an early stage’. In Scott’s case her dishonesty was not only ‘calculated and repeated’, she also failed to report what was going on for at least 18 months.
Late reports ‘could’ constitute mitigation, the SRA charter allows – but as we have seen before, dishonesty remains the ‘red line’. Citing the High Court ruling in the equally controversial recent case involving junior lawyer Sovani James, the judgment stresses: ‘The fact that the respondent was under pressure and working in a horrendous environment could not excuse dishonesty.’
While internally consistent, the judgment nevertheless confirms that professionals of any age thinking of speaking out about misfeasance swim in very muddy waters. In the City, for example, there is no ‘safe harbour’ either; yet rate-rigging prosecutions there have collapsed because the accused successfully argued they were coerced by their bosses. All very ambiguous.
So the charter starts to creak: ‘We would rather solicitors and others working in the legal sector provided information late than not at all.’ Of course. But how many juniors in Scott’s shoes will now speak out, in the knowledge that they too risk sacrificing a career that has barely got going?
Best to make your excuses and quietly move on, they may regretfully conclude. And who benefits from that? Neither clients nor the public. In that context especially, the SRA’s decision to review its whistleblowing charter is most welcome.