Email: Single episode of misconduct
A solicitor’s “moment of madness” in misleading an opposing firm on a matter while she was suspended on disciplinary grounds has avoided being struck off.
Jane Stark admitted she had acted dishonestly in pretending that that she was her personal email account because of server problems at the firm.
However, the Solicitors Regulation Authority (SRA) submitted, and the Solicitors Disciplinary Tribunal (SDT) agreed, that the case fell into the small category of cases where dishonesty should not lead to a strike-off.
These included that her motivation was to assist her client.
Ms Stark, who qualified in 2006, worked at Oldham firm North Ainley Solicitors. In August 2020, she was invited to submit a proposal for promotion to salaried partner. Instead,
she submitted her resignation, alleging a breach of the terms of mutual trust and confidence in her employment contract.
On 15 September, she was suspended pending a disciplinary hearing after she and a colleague were accused of setting up a limited company with a view to launching their own practice, in breach of the implied duty of good faith and loyalty.
Ms Stark was told she would not have access to the firm’s systems in the meantime.
She had been acting on a property refinancing matter and, on 17 September, sent an email from a personal account to the solicitors acting on the other side, asking for the documents.
She told them she was using her own email because of server problems and could not log into the firm’s system. The solicitors contacted North Ainley to verify this.
Ms Stark told the firm that she had sent the email because completion on the deal was due that day and she wanted to ensure it happened.
However, at the disciplinary hearing two days later, she “admitted with hindsight” that she should not have sent the email. She was summarily dismissed after the hearing, the other solicitor having already resigned.
Ms Stark told the SRA that the misconduct was wholly unconnected with setting up her new practice; rather, she was concerned to ensure urgent action was taken on the matter as there had been no file handover.
She said the email was intended simply to chase opposing solicitors for documents needed to complete the transaction.
Ms Stark admitted dishonesty and the usual sanction is striking off unless there are exceptional circumstances.
Few cases meet this test but the SRA argued, and the SDT accepted, that Ms Stark’s did.
Her motivation was to assist a client, not personal gain, there was no harm caused and the solicitor had not regulatory history – this was a “single episode of misconduct in a previously unblemished career, limited to a single short email”.
She was also suffering from confidential health issues which provided “some context” for what she did.
“The case therefore falls within the small residual category where striking off would be a disproportionate sanction,” the SRA said.
But a six-month suspension was justified: “Public confidence would be damaged if a solicitor who was dishonest, even in the circumstances of this case, was allowed to continue practising…
“In light of her adverse health (which is ongoing), it is necessary for the protection of the public and public confidence for her to be removed from practice for a finite period and then subject to indefinite restrictions following that.”
These mean Ms Stark cannot be a partner or compliance officer, and can only work as a solicitor with the SRA’s permission.
She also has to “keep her professional commitments under review and limit her practice in accordance with any medical advice”.
The SRA said that, in the event her health condition changes, she could apply for the restrictions to be varied or removed.
Agreeing with the proposed outcome, the SDT described the misconduct as a “moment of madness”, accepting the SRA’s reasoning except for finding there had been harm caused to the profession’s reputation.
Striking off was “disproportionate to her misconduct”; the suspension plus conditions “adequately reflected the seriousness of the misconduct and provided protection to the public from future harm by Ms Stark”. It also protected the reputation of the profession.
Ms Stark also agreed to pay costs of £13,800.
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