Judges have been urged to apply ‘21st century sensitivities’ to the question of whether to grant leniency to a solicitor found to have been dishonest.
Fenella Morris QC, representing the solicitor Peter Naylor, told the High Court it should be prepared to treat different types of dishonest act – from the ‘heinous crime’ to an act where clients are not adversely affected – with different sanctions.
Naylor, when an associate at national firm TLT, sent five misleading emails to a corporate client in 2014 with false updates about progress. He told the Solicitors Disciplinary Tribunal earlier this year he was trying to ‘buy himself time’ in the midst of an impossible workload.
The tribunal opted to impose a suspended temporary ban, allowing him to continue in practice, but the Solicitors Regulation Authority this week appealed the sanction decision as part of a hearing into three separate cases it feels were dealt with too leniently.
Morris, from 39 Essex Chambers, said she did not seek to deny Naylor had acted dishonestly, but stated that his worsening mental health condition, aggravated by the pressures of an ‘unforgiving’ work environment, had altered his conduct.
In the tribunal judgment, it was said that at the height of his struggles, Naylor held a meeting with his superiors at which one was reported to have admitted they treated Naylor ‘like an abusive husband, always asking for forgiveness and saying it would be different’.
Morris told the High Court: ‘Members of the public will be sympathetic to Mr Naylor. It is a reality understood by the public that there can be toxic workplace environments which will produce [out of character] behaviour.’
Sitting in the High Court, Lord Justice Flaux took exception to this wording and suggested that the pressures experienced by Naylor were no different to that of any corporate lawyer. The judge said: ‘To categorise TLT as a toxic workplace environment is going way beyond anything the tribunal found.
‘As a result of missing a deadline [Naylor] told a series of porkies. Of course it is not heinous conduct but it is serious dishonesty. Unfortunately, whether we like it or not, his circumstances were not unique.’
Morris said Naylor had been a ‘credit to the profession’ with not even a parking ticket to his name before the misconduct, which she characterised as ‘not a moment of madness but months of madness’.
She also drew parallels with the recent Court of Appeal judgment which ordered the reinstatement of medical doctor Hadiza Bawa-Garba after a boy’s death. The doctor had been convicted of gross negligence manslaughter and was suspended for a year in June 2017, before the General Medical Council appealed that decision and had her struck off. Appeal judges upheld her appeal in August and allowed her to practise medicine again.
Morris told the High Court: ‘[Bawa-Garba] was in a high pressure workplace and had an inability to cope. That combination of factors is vitally relevant.’
Yesterday the SRA urged the court to strike off the three solicitors – Naylor, Sovani James and Esteddar Macgregor – arguing that stress and mental illness was an explanation for mistakes and negligence, not an excuse for dishonesty.
Submissions concluded this morning and judgment was reserved until a later date.