UK Court Refuses To Overturn Solicitor’s Sole Practitioner Ban

The High Court has rejected a solicitor’s appeal against a
decision to ban him from working as a sole practitioner.

It was one of the sanctions levied last year by the Solicitors
Disciplinary Tribunal^[1] (SDT) on Anthony
Gale, after it found he had been “sloppy, lazy and careless” when
acting in conveyances on the instructions of a third party without
confirming them with the clients or conducting due diligence on the
clients or transaction funds.

The SDT fined him £10,000 and ordered him to pay costs of
£28,000, and banned him from acting as a COLP or COFA, and working
as a sole practitioner.

At the material time, Mr Gale – who qualified in 1990 – was a
partner at Yorkshire firm Maurice Smiths Solicitors, which has
since merged with Leeds practice Ison Harrison.

Though he accepted the fine and the COLP and COFA restriction,
he argued before Mr Justice Pepperall in the High Court that the
sole practitioner ban was both disproportionate and
unnecessary.

Mr Gale submitted that his failing was in not keeping proper
records. The judge recorded^[2]: “While he accepts that
he was lax and careless, he disputes that he acted flagrantly and
argues that this was not a case of failing to consider matters
correctly.

“Although the failings took place over a number of years, they
involved one family that was very well known to him. Consequently,
he argues that not only was no loss in fact suffered but the risk
of loss had been minimal.

“Mr Gale argues that there is no future risk to the profession
and relies on his long and hitherto unblemished career and the
references that were provided to the tribunal.”

In opposing the application, counsel for the Solicitors
Regulation Authority (SRA) said the potential for harm in the case
was high, and pointed out that Mr Gale could in time apply to the
tribunal seeking the removal of the restrictions.

Pepperrall J had little truck with Mr Gale’s arguments: “Here,
the tribunal undertook a careful assessment of culpability, harm
and the aggravating and mitigating features of this case. Its
assessment was neither wrong in principle nor plainly wrong.

“The tribunal accepted that no harm had in fact occurred, but I
reject Mr Gale’s submission that it was wrong to regard the
potential for harm to have been high. Indeed, in my judgment, the
tribunal’s assessment that Mr Gale’s insight as to the seriousness
of his failings is still developing was borne out by his written
and oral submissions on this appeal.

“I do not accept that this was merely a failure of record
keeping; Mr Gale’s failings were more fundamental in acting for
clients without seeking or obtaining their direct instructions and
in failing to comply with proper money laundering checks.”

While acknowledging that there had been no allegation or finding
of dishonesty, the judge said the tribunal did find that Mr Gale
had failed to act with integrity.

“The tribunal was therefore right to consider whether some
sanction beyond a financial penalty was required both to prevent
further similar failings and to maintain the reputation of the
profession.”

Its reasoning in reaching the conclusion it did “betrays no
error of principle”, Pepperall J said.

“Further, its assessment that it should impose restrictions on
Mr Gale preventing his practising as a sole practitioner and acting
as either a COLP or a COFA was not plainly wrong. Indeed, I go
further. On the facts of this case, I consider that the
restrictions imposed were obviously justified and appropriate.”

Mr Gale also failed in his challenge the costs order. His
arguments included that the SDT should have ordered a detailed
assessment, and reduced the costs by more than £2,000 when
disallowing 37 hours of the time taken on the case by the SRA’s
solicitors, Capsticks.

Pepperall J said the court should be “particularly slow” to
interfere in a tribunal’s decision as to whether it should fix
costs or refer the bill for detailed assessment.

The £30,000 sought by the SRA was “the sort of costs bill that
is routinely assessed summarily” and the decision taken by the
tribunal was entirely within its discretion; he also noted that
neither party asked for a detailed assessment.

The SRA pointed out that Capsticks worked on a fixed fee, not
hourly rates.

The judge said: “The tribunal could have helpfully gone on to
explain that its task was not to scale down the fixed fee but to
assess the reasonable costs that should be awarded for the 99
hours’ work that it regarded as having reasonably been undertaken
on the case.

“Despite its failure to state this in terms, that was not only
obviously the right approach but, in my judgment, was plainly
implicit from its award of costs.”

Culled from .legalfutures.co.uk