Letters roundup - 11 February 2019

Counterproductive punishment

Re: ‘SDT bars whistleblower despite “horrendous” work environment’. The Solicitors Disciplinary Tribunal has an obligation to root out and punish dishonesty in the profession, but the treatment of Ms Scott was still pretty harsh and, in my view, wholly counterproductive. 

How many of us – as junior solicitors or trainees – would have had the courage to immediately report dishonesty and refuse to participate in the dishonesty of our principals, knowing that in doing so we would probably be sounding the death knell for our careers before they had even started?  

The SDT exists to protect the public, but its decision in this case is contrary to that interest. Ms Scott was a trainee solicitor and the one who alerted the regulator to what was going on. Yet her punishment was the same as those whom she reported.  

The judgment will thus disincentivise junior lawyers from reporting wrongdoing. They may instead decide to keep their heads down, turn a blind eye and hope that it all goes away.  

In addition, of course, it opens the door to blackmail. If a trainee does not act immediately, they may be told by an unscrupulous principal that if the principal goes down then they will take the trainee down with them. Even if the trainee has done or seen nothing themselves, it might be difficult to prove this to the satisfaction of the regulator. Why take the risk? Better to leave and keep your mouth shut.

I have no problem with the suggestion that Ms Scott should receive some sanction; she did, after all, cooperate (for a while) with her principals in their dishonesty. However, she accepted a degree of culpability, she was responsible for bringing the matter to the attention of the regulator and she was in a very subordinate position. 

In this case, suspension for a year or an order for supervised practice would have seen justice done. That would also have sent the message that while no one can wholly exculpate themselves for actions of dishonesty, principals who abuse their juniors as tools in the furtherance of dishonesty can expect to face the full rigour of the regulator.

Objectively, Ms Scott was less culpable than her principals. The regulator should have recognised that.

J Howard Shelley
Solicitor, Bilston, West Midlands

Lord Falconer got it wrong

As well as confessing that he failed to properly understand the weak level of support for basic principles of justice within the political world, another revelation from a recent piece in the Guardian by Lord Falconer was the statement that: ‘The Ministry of Justice, continuously held in a straitjacket by the Treasury, is driven by money and the need to save it. Justice doesn’t have its electoral pay-off like schools and hospitals do. Its defenders are lawyers.’ Quite. 

Perhaps, however, the most striking statement is the conclusion: ‘Justice fell into the hands of the accountants in 2012. It urgently needs to be released.’

It is difficult to understand why Lord Falconer is so surprised that things have turned out this way. When he crafted the Constitutional Reform Act 2005, radically reforming the lord chancellor role, he was repeatedly warned about the risks of allowing younger, ambitious non-lawyer politicians to hold this constitutionally unique office. For it is not, as he suggests, the efforts of previous lord chancellors (including himself, as he acknowledges) to control the departmental budget that have created the environment for the staggering 82% reduction in the number of people accessing legal aid; it was instead the short-sighted and entirely foreseeable consequence of his decision to draft section 2 of the Constitutional Reform Act 2005 in the fashion in which it now appears on the statute book. 

Having succumbed, perhaps understandably, to the allure of pursuing a radical and progressive programme of reform while in office, he has, I’m afraid, thrown the baby out with the bathwater.

Decisions about the extent of legal aid provision; access to representation in coroners, criminal and family courts; setting small claims limits; and the discount rate (to name but a few) must be driven by the demands of fairness, the interests of justice and the overall requirement to uphold the rule of law. It was naive to think that those considerations would not be minimised, and political and financial considerations accorded greater weight, as a result of the 2005 act.

Rather than offering his non-apology for trying to get expenditure on legal aid under control, I and no doubt many others would prefer to hear Lord Falconer acknowledge that on the Constitutional Reform Act, he got it wrong. Perhaps then we can move forward.

Richard Edwards
Solicitor, Potter Rees Dolan, Manchester

Dealing with ‘the other side’

‘I really could scream. Am I alone?’ writes Rupert Morton-Curtis (14 January). No Rupert, you are not. You have not even mentioned the tooth-extracting, hair-pulling and beating of breast-type of despair and frustration that has become the norm in our sorry profession when dealing with ‘the other side’.  

Why can’t anyone simply and truthfully answer a question or properly complete a form? I have lost count of the times I have received ‘replies’ and forms completed by the seller’s solicitor, usually with little or no input or reference to the seller at all. And there is now a nasty new ‘trend’ of purposefully misinterpreting a question, or not answering a question by pretending to answer it with reference to ‘see attached’. The latter usually consists of random documents or sentences completely unrelated to the question asked or, if you are lucky, plans coloured by a four-year-old and endorsed by the Land Registry, which refuses to help when the thick line or colouring affects more than one title.  

How many ‘reforms’ of conveyancing and property law are in the offing, sneering about everything that is wrong with conveyancing, compared with say, litigation? We are fed up with being pilloried; and the undisguised threat of the Land Registry getting into bed with the bulk conveyancers and indemnity insurers, and taking over the world. See how they get on with a conveyance of a listed building. 

Why not put everything on the office copies, like some European countries (including planning history). Now that is forward thinking. The Land Registry will probably have a hissy fit.

Kerry Ridden
Solicitor, Goring-on-Thames

Gender divide

Ingrid Gubbay (Lawyer in the News, 21 January) is advising the Free Periods campaign. Yet the piece talks of ‘free menstrual products to all schoolchildren’ and that ‘one in 10 children aged 14-21 in London is unable to afford menstrual products’ (my emphasis).

How can this be correct? It is political correctness gone mad! Why use gender-neutral words when they are so clearly inappropriate. The feature should refer to young women, female minors or girls, not children. It is girls who suffer from period poverty, not young men or boys, because females menstruate, males do not. 

I am reminded of Helena Bonham-Carter’s role in the film Fight Club, where she attends a testicular cancer support group. Edward Norton’s character realises the absurdity of her attendance and the Gazette should recognise the absurdity of referring to children in this feature. The sexes have different trials in their lives and those differences should be recognised not diminished. 

Anonymous (female)

Mind the language

I was pleased to see a suggestion in the Gazette that modes of address should be reconsidered (news, 28 January).

It is high time to end the distinction between barristers and solicitor-advocates. Passing the bar finals is not an indication of learning.

There is also no need to continue with the word ‘counsel’. It is an unnecessary affectation.

As for ‘learned counsel’, this is useful only when one wishes to be sarcastic.

Can advocates not be referred to by name or as advocates?

Alasdair Darroch 
Retired circuit judge, Horstead, Norfolk