Case of the week: Legal profession
30 April 2012
Holman J. 4 April 2012
The Solicitors Disciplinary Tribunal (SDT) had been excessively lenient in imposing a 12-month suspension on a solicitor who had forged letters from his former law firm in support of a fraudulent insurance claim. The only appropriate sanction was striking his name off the roll of solicitors.
The appellant SRA appealed from a decision of the SDT to impose a 12-month suspension on the respondent solicitor Motihur Rahman rather than strike his name off the roll of solicitors (Clarification: This case does not refer to Rashel Motihur Rahman, who is an in-house barrister at Coca Cola Enterprises).
Rahman’s employment with a law firm had been terminated for sub-standard performance. He held a mortgage insurance policy which he did not believe would cover him under those circumstances. He forged letters to the insurer purporting to be from his former employer, on official firm writing paper, stating that he had been made redundant rather than terminated for poor performance.
When the firm confronted Rahman after discovering some drafts of the forgeries, Rahman lied and said that he had not sent any forged letters to the insurer. The firm then contacted the insurer and discovered that forged letters had been sent.
When the firm confronted Rahman again, he admitted what he had done. The SDT suspended Rahman from practice for 12 months on the basis of dishonesty.
The SRA argued that the tribunal’s sanction had been excessively lenient and that the only appropriate sanction was to strike Rahman’s name off the roll of solicitors.
The utmost regard had to be given to the tribunal’s decision, Salsbury v Law Society (2008) EWCA Civ 1285, (2009) 1 WLR 1286 followed. Nevertheless, the tribunal’s reasoning in the instant case had been seriously flawed.
The normal consequence in a case of serious dishonesty was striking off; there was only a very small residual category where striking off was not appropriate.
To decide whether the instant case fell into that residual category, the court had to consider the nature, scope and extent of the dishonesty, whether it had been momentary or over a lengthy period, whether it had accrued a benefit to Rahman, and whether it had had an adverse effect on others, SRA v Sharma (2010) EWHC 2022 (Admin) applied.
The tribunal had erred in its assessment of Rahman’s behaviour as a mere aberrant act of panic. Rather, the dishonesty had been premeditated and had involved multiple acts of serious dishonesty over more than a week. His abuse of the firm’s writing paper and forging of its signature had been an offence of the utmost gravity.
The tribunal also had erroneously credited Rahman’s youthfulness and inexperience.
He had been a fully qualified and practising solicitor under the same obligation of honesty as every other member of the profession, Bolton v The Law Society (1994) considered.
Additionally, Rahman had not shown contrition until after he was caught; the appropriate time for contrition and candour would have been before he had been caught.
Moreover, Rahman had intended to benefit from his dishonesty, and the dishonesty had adversely affected one of Rahman’s former colleagues, who was placed under suspicion and investigated by the firm. Accordingly, the tribunal’s sanction had been excessively lenient and striking off was the only appropriate sanction.
Rahman would not be liable for the SRA’s costs. The appeal did not proximately result from Rahman’s dishonesty; it proximately resulted from the tribunal’s error.
For the appellant SRA
Geoffrey Williams QC, Farrer Buildings
For the respondent Rahman
Motihur Rahman appeared in person
Commentary: Iain Miller
The Solicitors Regulation Authority (SRA) makes more than 200 applications each year to the Solicitors Disciplinary Tribunal (SDT). Both the SRA and the respondent have a right of appeal to the Divisional Court pursuant to the Solicitors Act (1974).
The SRA has exercised its right of appeal sparingly; there have been less than a dozen appeals in recent years.
These appeals have related to two specific areas: costs orders and decisions where the SDT has found serious misconduct or dishonesty but has not struck the solicitor off the roll. Rahman is the latest of these latter cases.
The SRA was not satisfied that the initial penalty of a 12-month suspension imposed by the SDT was appropriate.
The leading case, Bolton v The Law Society (1994), is clear that where a solicitor is found to have acted dishonestly, a strike-off will almost inevitably follow. However, there is an ongoing practical problem of cases that raise difficult questions as to whether they are so exceptional that a strike-off is not the appropriate sanction.
In this case the SDT appeared to equate sympathy with exceptional circumstances, which the Divisional Court considered was not the right approach and substituted a strike-off.
This less sympathetic approach is also reflected in the recent case of Dennison. Under the changes brought about by the Legal Services Act 2007, decisions of the SRA in relation to alternative business structures will be appealed to the SDT. It will be interesting to see how this jurisdiction will develop.
Iain Miller, partner, Bevan Brittan