Flaux: SDT made errors both of law and of principle
The Solicitors Disciplinary Tribunal (SDT) was too lenient in only fining a solicitor who had clients pay money into his personal bank account, High Court has ruled.
Lord Justice Flaux upheld the appeal of the Solicitors Regulation Authority (SRA) and instead struck off Kwame Agyekum Siaw after deciding that the SDT had been wrong to find that he had not been dishonest.
Mr Siaw was an immigration partner at The Mountain Partnership in South-East London. However, in May 2014, its senior partner found that Mr Siaw was not always passing client payments through the firm’s systems and decided the solicitor should move on.
He told Mr Siaw not take on any new matters nor undertake any pro bono work without his consent. Mr Siaw was given until December 2014 to close down his files, but he failed to do so and did not leave the firm until October 2015.
In 2015, he began giving free immigration advice to a ‘Mr K’, but with Mr K facing deportation, Mr Siaw had him sign a letter of authority appointing Mountain to act on his behalf.
Evidence from Mr K and his wife was that they agreed to pay Mr Siaw £1,500 in fees, with £500 on account, paid into his personal bank account. Mr Siaw did not account for the money to the firm.
Some £205 of that went on disbursements but the SDT found that Mr Siaw could not account for the other £295.
His attempt to argue that it was the fee for an oral hearing to reconsider a refusal of permission to apply for judicial review fell apart during the tribunal hearing when it was established that there was no such application.
The SDT decided that Mr Siaw failed to act both with integrity and in a way that maintained public trust in him and the legal profession, but that he was not dishonest: “He had a deep if misguided belief that he was acting privately to help a friend and that at least part of the money was his own.”
The tribunal found the same failings in the “untrue and misleading” answers Mr Siaw gave to the SRA about the money when it investigated the matter.
But given his “muddled state of belief in respect of the payment”, the SDT said it had not been proven that Mr Siaw was trying to mislead the SRA.
Given that the conduct was “of fairly short duration in an otherwise unblemished career” and Mr Siaw “seemed genuinely contrite”, the tribunal concluded that a £10,000 fine was an appropriate sanction.
Hearing the SRA’s appeal in the Divisional Court, Lord Justice Flaux said he was “clearly of the view that there are errors both of law and of principle in the SDT’s approach to the issue of honesty”.
The SDT’s finding that Mr Siaw knew that either all or part of the money he received was costs and that he should pay it into the firm was “only consistent with a conclusion that his retention of the money was dishonest”, the judge said.
Similarly, the ruling in relation to Mr Siaw’s dealings with the SRA was “an unqualified finding that he had lied to and misled the regulator”.
The decision that the solicitor had a “muddled belief” was “totally inconsistent” with the earlier findings of lack of integrity.
Flaux LJ said: “It is difficult to see how, if the respondent had really had the mistaken belief found by the SDT that he was acting privately for a friend and that some of the money was his own, the SDT could have found lack of integrity proved against him to the requisite standard.”
By trying to divine Mr Siaw’s motive, the judge said, the SDT had set the bar too high or placed an “impermissible and irrelevant gloss” on the Ivey test of dishonesty.
He explained: “Given its finding as to the knowledge of the respondent that all or part of the money was costs due to the firm which should be paid into the client account, if the SDT had simply applied the objective Ivey test and asked itself whether his conduct of receiving the money in his personal account and retaining it there with that knowledge was conduct which ordinary decent people would regard as dishonest, in my judgment that would only allow for an affirmative answer.”
Deciding on sanction, he said that, though the amount involved may have been moderate, “any dishonesty involving handling of client money is serious and in this case was aggravated by the fact that the respondent was prepared to lie to and mislead the SRA”.
Flaux LJ ruled that “this was serious dishonesty for which the only appropriate sanction is striking off” – and it would have been the same sanction even if dishonesty had not been found, given what he said were findings of a serious lack of integrity.
Separately, the High Court has rejected an appeal against strike off by a solicitor who named his personal injury client as the defendant in a claim against the firm by an expert witness.
Lord Justice Davis said the “many points” made by Richard Thomas Clegg “simply do not justify this court in interfering with the factual findings and conclusions of the tribunal”.
He went on: “The tribunal was reasonably entitled to assess and evaluate the evidence as it did. The fact that the appellant himself strongly disagrees with such assessment and evaluation is not, I am afraid, enough.”
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