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Hi Frank, I'm with Marshall on this, fabrications and misleading communications have always been with us.

Developments in IT have made it easier for those fabrications to become more extensive, and at the same time, the speed of communication has led to less reflection time, e.g. an e-mail sent in haste vs. a letter typed following dictation.

In my experience, more often than not the fabricated e-mail is unimportant, i.e. it's more likely to be a chaser, or promise to update, rather than say, material evidence, or meeting a time limit. (Psychologists such as Kahneman and Ariely say that given the opportunity we're quite likely to cheat a little, rather than a lot e.g. self-marking a test, we'd give ourselves only a couple of extra marks).

The cause can be a lack of integrity or honesty, but in most cases that I've dealt with at the SDT there's been an impaired decision making function as a result of mental ill health, sometimes where the solicitor is suffering from psychosis and thus unable to form an appreciation that their conduct is dishonest, others where a significant mental disorder simply caused a failure to appreciate the nature of their conduct.

I agree that there needs to be further research into the way that mental ill health affects decision making (or at least for the existing research to be more widely available and discussed), and for there to be much greater support available within firms (not decrying the great work that LawCare does). More often than not solicitors are taking on their clients problems and yet we don't have the inbuilt support that say, those working in counselling have.

In my view we also need a culture shift about how we see our human resources e.g. eradicating the macho culture that exists in some firms, and having a serious look at the consequences of billing targets.

As we know, SDT sanctions are more often concerned with the reputation of the profession than individual punishment. We need to be cautious not to impose sanctions that are disproportionate to the culpability of the solicitor, in fear of media criticism, rather than genuine concern the public might have informed of all the facts of the case. There are degrees of dishonesty, and in my view minor aberrations need not be career ending to uphold the reputation of the profession.

As ever, it's very difficult to get an understanding of the circumstances of a case from reading a judgment. I acted for the Respondents in the two other SDT cases mentioned in this article. In fact there have been 3 other recent similar decisions, I also acted on the third case, one hasn't been reported in the Gazette.

A factor in the recent decisions has been the change in test for dishonesty from Twinsectra to Ivey. It now appears that the Tribunal will find dishonesty proven if a Respondent had the facts available to him/her at a point in time, even if, at the time of his conduct they were not present in his/her mind. I'm not sure that this is the correct way to assess such allegations, or that this was intended in Ivey. However, the consequence is that dishonesty, objectively considered, is less likely to reveal the culpability of the solicitor, in contrast to a finding when Twinsectra applied.

As soon as the Ivey decision was published it was, in my view, evident that we'd see more findings of dishonesty, but in turn, it was less likely that such a finding would result in strike off. It has thus far proven to be the case. In my view the obiter comments in Lusinga v Nursing & Midwifery Counsel (2017) (there are grades of dishonesty), is preferable to SRA v Sharma (2010) (one must establish exceptional circumstances to avoid strike off - nb the Twinsectra test applied here). Dishonesty may well lead to strike off, but it shouldn't necessarily be the case, as I have recently argued.

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