SDT: Solicitor did not try to hide what she had done
A council solicitor who amended a signed witness statement without express confirmation of the changes before submitting it to the High Court has been cleared of misconduct.
The Solicitors Disciplinary Tribunal (SDT) found that Anita Barnett did not intend to deceive the court and indeed had been authorised to make the amendments.
There was a “culture of collaborative approach to the preparation of witness statements and delegating authority to use electronic signatures” at the council, the tribunal found.
Ms Barnett, who was working at the unnamed county council as a senior solicitor in the adult social care team, was handling its application for a deprivation of liberty safeguards authorisation to the Court of Protection and subsequently the High Court, in relation to a vulnerable adult.
In June 2019, she submitted a witness statement from Karen Webb, a senior official at the council who had been seconded to the relevant clinical commissioning group (CCG).
The charges were that, having made amendments to the statement, Ms Barnett did not obtain Ms Webb’s “express confirmation” that she approved the amendments and then failed to notify the High Court that the version of the witness statement she had submitted had not been seen or approved by Ms Webb.
The first draft of the statement was done by the CCG’s solicitors, Mills & Reeve, but responsibility for filing it was the council’s.
Ms Webb approved and electronically signed the statement but, as she was then off on leave, had given Ms Barnett permission to make any final amendments. Ms Barnett said the changes she made were just matters of clarification.
After Ms Webb returned from leave, Ms Barnett went through the changes with her, made “a few minor tweaks”, and filed the revised version with the court.
The Solicitors Regulation Authority became involved after a report from Mills & Reeve’s COLP.
The SDT found the factual basis of the allegations proven but dnecided Ms Barnett had been either dishonest nor reckless.
It accepted her evidence that the general practice at the council was for officers to prepare their own witness statements in such proceedings but then authorise lawyers in the adult social care team to review and amend them “to ensure that the statement was in a correct format and was otherwise correct”.
There was also a culture of officers delegating authority to use their electronic signatures to sign witness statements on their behalf, as indeed Ms Webb had done with Mills & Reeve.
The SDT acknowledged that, at the time, the adult social care team was understaffed – Ms Barnett was the only solicitor – and that she was “drowning” in work.
Further, Ms Webb had gone on holiday and could not be contacted, the court’s deadline was looming and Ms Barnett had received the draft statement very late.
The SDT accepted that Ms Barnett had express authority from Ms Webb to make the changes she did, which was “consistent with the collaborative culture and general practice” of the council.
The solicitor had not sought to conceal the fact that she had made the amendments; rather, she had been “open, transparent and had acted with integrity”.
Ms Barnett had considered that, if Ms Webb had wanted to change anything in the statement, there would be sufficient time before the hearing to do so. Such amendments as were later made did not materially change the statement.
“Moreover, the tribunal was unable to accept that [Ms Barnett] could have had any ulterior motive in amending Mrs Webb’s statement other than seeking to make the statement clearer and more accurate.”
Whilst Ms Barnett should have sought express confirmation before submitting the statement, and at least informed the court that Ms Webb had not done so, the SDT found on the balance of probabilities that she was not dishonest or reckless.
Costs do not follow the event in the SDT as the regulator should be acting in the public interest, but they can be ordered if the prosecution is fundamentally flawed.
Ms Barnett sought £23,000 but the tribunal made no order as to costs, finding that, on the face of it, her conduct was very serious.
Its decision to clear her was “finely balanced… and did not mean that the tribunal in any manner whatsoever approves, less endorses, the respondent’s conduct or the culture of preparing witness statements” at the council.
“Instead, the tribunal wishes that [Ms Barnett] has now learnt her lesson and will not make the same mistake in future.”
The delay in bringing the proceedings to a hearing was “regrettable” but this was partly attributable to the pandemic.
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