Page 11

Sub-Committees

the interests of the public, first and foremost. Without making this into a sympathy contest, I would guess the majority of the public would see this ruling as unduly harsh…James had moved on, physically and mentally. She had worked in another firm without a hint of trouble. She had a long list of people willing to vouch for her, and a self-professed determination to prove them right. This was, by all accounts, out of character… Years on from an horrific episode in her life, she poses little or no further risk to the public. That, for me, should be the abiding factor in all of this. A career has ended when it doesn’t need to be.” 2. At least in the James case it can at least be said that the dishonest acts were initiated by the solicitor in question. That cannot be said in the case of Emily Scott, who was struck off in January this year. Whilst a trainee in a firm and under instructions from her principals she had raised bills for work not carried out; falsified and backdated letters forming part of a file to be sent to the Legal Ombudsman after a client had complained; and failed to initially report the misconduct. She told the tribunal she acted ‘under duress and under the instruction of [her principal] and not through choice’. She feared for her job if she made a report as it would have been obvious who had done it. When she left the firm in November 2014 she blew the whistle on the firm’s dishonesty. Her reward was the end of her career and a considerable costs liability. The SDT no doubt felt bound by case law, including that in the recent James case (although that case was clearly distinguishable). However the SRA was under no compulsion to prosecute her case, and one suspects that many will take the view that it is open to serious criticism for having done so. It is the sort of decision that serves no obvious public interest (probably the reverse in the message it sends to prospective whistle-blowers), and damages the reputation of the regulator more than that of the unfortunate respondent.

a solicitor at Allen & Overy for drawing up an NDA concerning Harvey Weinstein (apparently one of 13 NDA related investigations). Whilst we cannot comment on the facts of the particular case, we are concerned that the SRA may be adopting a fashionable cause without proper consideration. NDAs are often insisted upon by government departments. They have a useful part to play in settling disputes and are usual in semployment disputes (where ACAS regularly imposes them). Solicitors should not be inhibited from advising clients as to them just because of currently fashionable criticism of them. If the party signing the NDA did so on legal advice it was not clear why the solicitor acting for the other side should be guilty of misconduct for drawing one up. • We have also was also noted that solicitors in criminal proceedings in which their client makes a late guilty plea are being asked to stay behind after the trial to explain this to the court. The proper response will usually be that the solicitor is not at liberty to disclose the reasons because of client confidentiality. In that case the procedure is pointless but could seem like court bullying. If anyone would like to comment on these or related issues, please contact me on aylmer.julian@btinternet.com. Our committee is looking for new members and if any reader would like to be considered, please contact me. ■

Julian Aylmer Chair of the Professional Matters Sub-Committee

• We have also considered (but not responded to) the LSB “Consultation on the LSB’s Draft Business Plan 2019/20”. This raised some potentially interesting issues. (i) Public Legal Education. The LSB wants “to see higher levels of legal capability in the whole population, and particularly in vulnerable groups disproportionately represented in the legal system. More individuals and small businesses should be able to recognise when their problem is a legal one and know how to get help – and this should ultimately lead to less ‘unintentional’ unmet legal need.” This seems aspirational but difficult to implement in practice. (ii) Continuing Assurance of Professional Competence. Although CPD was not mentioned in the Consultation, an article in Law Society Gazette had suggested that this might well involve going back to requiring solicitors to earn CDP points. Our profession is out of line with other professions in not currently requiring this. Self-certification did not seem an adequate substitute for a requirement to earn CPD points. (iii) Non-Disclosure Agreements (“NDAs”). The Consultation refers to the Me Too Movement and says: “We recognise the ongoing debate around the use of non-disclosure agreements (NDAs) in relation to allegations of harassment and other similar conduct, and the impact on public trust in the profession. We will consider the LSB’s role, as an oversight regulator, in addressing these concerns.” Whilst NDAs should clearly not exclude a solicitor’s duty to report clear misconduct to the SRA, or prevent the reporting of a crime, in our view regulators should tread warily. • The SRA does not seem to accept the need for caution in this area. It has been reported that it is prosecuting a case against

CENTRAL LONDON LAWYER 11

Profile for Benham Publishing Limited

Central London Lawyer May 2019  

The Official Law Journal for the City of Westminster Law Society. Featuring the latest news and features on International events, property a...

Central London Lawyer May 2019  

The Official Law Journal for the City of Westminster Law Society. Featuring the latest news and features on International events, property a...

Profile for benham