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Court of Appeal and High Court take tough line on dishonesty

Solicitors Regulation Authority v Dennison [2012] EWCA Civ 421

Mr Dennison was a solicitor in a firm specialising in personal injury claims. He also had an interest in a company providing medical reports for use in litigation. He used his position in the firm to instruct the company to prepare medical reports for his clients. He did not disclose this outside interest to the partners in his firm. The SRA alleged professional misconduct on the grounds of conflict of interest and dishonesty. The Disciplinary Tribunal found that Mr Dennison had deliberately kept his interest in the company secret and had failed to inform his clients. The Tribunal found that the failure to inform his partners in the firm amounted to deliberate deception. However due to the length of time since the complaint, the fact he had made a payment to the partners on account of any liability that might arise due to his actions and the lack of risk to the public, the Tribunal did not strike him off but imposed a financial penalty.

The SRA appealed to the Divisional Court who allowed the challenged and struck Mr Dennison off the Roll. Mr Dennison then appealed to the Court of Appeal on the grounds that the court below had failed to give sufficient weight to the views of the experienced Tribunal. He also argued that his case fell within the very small class of cases that had involved dishonesty where strike off was not the appropriate sanction.

The Court of Appeal dismissed his appeal. The legal framework within which the appeal fell to be determined was not in dispute. Bolton v Law Society [1994] 1 WLR 512 approved and followed:

“Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course take different forms and be of varying degrees. The most serious involves proved dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariable, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it be willing to order the restoration to the Roll of a solicitor against whom serious dishonesty has been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation…

“it is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. The purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliant with the required standards. The purpose is achieved for a  longer period and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission… A profession’s most valuable asset is its collective reputation and the confidence which that inspires.” (per Bingham MR)

In dismissing the appeal the Court of Appeal found that this was not a case where the dishonesty was so trivial as to justify a sanction short of striking off. The passage of time since the events, the lack of risk to the public and the payment to the partners did not mitigate the offence and did not justify the weight placed on them by the Tribunal. A financial sanction would not ensure public confidence in the profession.

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