“Rotten Culture” - The myth and misinformation surrounding Junior Solicitors

ARTICLE

“Rotten Culture”

The myth and misinformation surrounding Junior Solicitors

In a powerful speech widely reported the former President of this esteemed local Law Society, Westminster & Holborn, Paul Sharma denounced what the Law Society Gazette referred to as a “rotten legal culture” and suggested that “young solicitors are being hauled up before the SDT in disproportionate numbers for small mistakes and losing their careers”.

The intention was clearly noble, the reality though is somewhat different. As a Practitioner before the Solicitors Disciplinary Tribunal (SDT) I have always acted for both law firms and individuals. The vast majority of those firms and individuals before the SDT are senior lawyers, statistically aged 40 to 60 with twice as many men appearing 1 . Those in a position of authority with the opportunity to abuse a privileged position either by dint of being a partner, a sole practitioner or in a position of significant influence over others. The role gives an opportunity.

In reality few junior solicitors come before the SDT but when they do the profile of those cases tend to be high profile. In the 2017 case James, in which I acted, the SDT Judgment found she was working in a “toxic” environment. This case triggered a period of navel gazing into the defects within the culture across England and Wales, partly as we ran a PR campaign to try and support the position on appeal through awareness raising. When it was decided by the SDT James stood alone in an oasis away from numerous other decisions over the previous decade. Unfortunately within 6 weeks it had been followed by two other cases which were ultimately all conjoined together to be heard in the High Court when the SRA appealed.

The unintended consequence of the Tribunal’s focus on the toxic culture was that it triggered a debate. It was a muchneeded debate. It has led to many good and subtle changes across law firms throughout England and Wales. The improved focus on mental health, in supporting young solicitors and a rising awareness both of the increased expectations of the younger cohort of the profession but also the evolving and necessary focus on thinking about the impact of mental health.

I do though take issue with Mr Sharma’s portrayal of young solicitors being hauled before the SDT and disproportionate numbers for small mistakes. The cases before the SDT simply do not bear this out. They are as they always have been, dominated by cases of abuse of senior position. That is not junior lawyers. As for the suggestion that small mistakes lead to the losing of careers again any factual analysis shows this to be incorrect. Where junior lawyers have lost their careers, they have done so because of dishonesty and because of the cover up. I spoke to the Junior Lawyers’ Division of the Law Society of England and Wales Annual Conference in May of 2018, and what I said then I stand by all this time later, if you make a mistake stick your hand up explain what has happened and ask for assistance in minimising the impact on the client. We all occasionally make mistakes. We therefore have to create a culture of openness, transparency and of accepting our errors. You can look to sport if you ever want to see numerous examples of outstanding performers who make errors, learn from the defeat or the mistake and come back stronger. We must, as part of our approach of trying to support of junior lawyers, encourage them to be resilient and encourage them to be open and transparent.

The political cliché of it is the cover up that ends the political career is equally applicable to law. If you cover up a mistake, however minor that mistake in itself maybe, you will end your career because of the coverup and the fact that that contains an element of dishonesty.

The SDT guidance on sanctions 8th edition which was published in December 2020, repeats trite law in relation to the purpose of sanctions. It refers specifically to the case of Bolton v The Law Society [1994] 1WLR 512 which sets out the fundamental principle including the purpose of imposing any sanction by the Tribunal as being:

“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 … a penalty may be visited on a solicitor… in order to punish him for what he has done to deter any other solicitor tempted to behave in the same way…”.

Whether 1 day qualified or 50 years qualified you must act with complete integrity. The purpose of sanction is not to punish, it is to deter others from behaving in the same way.

In the case of the junior lawyers that have hit the headlines over the last 5 years or so the outcome has always been about that integrity, probity and trustworthiness and sending the message to others not to cover up the mistakes.

In fairness to Mr Sharma, he makes one isolated point that I would love to see this Law Society explore further. There is an inequality of arms once cases reach the Solicitors Disciplinary Tribunal. The reality is the SRA has a experienced professional regulatory specialist team, they contract with a specialist firm of solicitors to provide external advice and they utilise external Counsel and Queen’s Counsel extensively.

By contrast, most individuals appearing before the Tribunal are funding their own case so only if they are wealthy will instruct somebody with experience and competence to defend the matters. Undoubtedly the outcomes when they do are stratospherically different. Those who can afford specialist legal advice will naturally get better outcomes.

There is one other issue which is not touched on within the pieces I have seen linked to Mr Sharma’s speech, but is fundamental to both supporting junior lawyers and where the Solicitors Regulation Authority (SDT) can rightly be criticised.

The Legal Services Act 2007 permits the introduction by the SRA of Fitness to Practice proceedings meaning that those who are unwell, whether physically or mentally, can be protected from Disciplinary Sanctions by focusing on ensuring they are well rather than focusing on misconduct. The SRA has abdicated its responsibility to bring in any such rules. The SDT does not have any right to bring these rules in.

For all the anger and furore that has been directed at the SDT, in policy terms it is clear that the SDT is supportive of a Fitness to Practice regime, and for the small number of junior lawyer related cases it would have given the SDT other outcome options.

In summary therefore I would encourage junior lawyers, and those who supervise junior lawyers, reading this piece to take a breath to ignore the nonsense and to focus on the fact that if you are open, transparent and trustworthy it is okay to make a mistake. If your supervisor lacks proper management skills and cannot cope with your mistakes that is unfortunate, it is unpleasant, but ultimately do not be tempted to cover up just to appease someone who cannot manage you effectively. Be open, be transparent and be honest you will then be at no risk of being struck off. For firms, focus on your supervisors – good managers make a huge difference. ■

Paul Bennett

Paul Bennett

Partner

Bennett Briegal LLP

1. “Trusted to the ends of the earth?” An analysis of solicitors’ disciplinary processes in England and Wales from 1994 to 2015 Andrew Boon & Avis Whyte, published March 2021. Other studies of more recent decisions exist but this covers every decision during a twenty-one year period.