Counsel: Solicitor-advocate misled judge she was barrister
An experienced solicitor-advocate has been struck off for misleading a judge that she was a barrister and then misleading the solicitors on the other side who questioned her behaviour.
The Solicitors Disciplinary Tribunal (SDT) also found that Bina Maistry was not a credible witness and had dishonestly fabricated documents to purport that a paralegal was being supervised when she was not.
Aggravating her misconduct was that she been fined £2,000 by the SDT in 2011 after failing to exercise proper supervision over unqualified staff and to disclose facts to mortgagee clients.
Ms Maistry, who was born in 1974 and admitted in 2005, was a partner at West London firm ABM Solicitors. She had been a supervisor when her firm acted for the defendants in a family case. A paralegal – known in the ruling as ES – had day-to-day conduct of the matter.
She was charged with conduct offences, including for failing to correct a judge’s impression she was counsel, which she admitted but said it was not deliberate.
She had arrived late at the court hearing and discovered a costs order had been made against her clients, which she claimed had “overwhelmed” her and clouded her judgement.
The tribunal found she had used a number of phrases that a solicitor was unlikely to use, such as “I have been instructed rather belatedly” and “I called the solicitors”, and also did not correct the judge when he addressed her with phrases such as “Your clerk” and “It is one of the functions of counsel”.
Rather, it said, she positively encouraged his misapprehension with the words “My instructions were to attend… from the solicitor in this case”, when she was the solicitor.
The SDT found that in attempting to avoid being criticised by the judge, she “deliberately tried to distance herself from her own firm, and had externalised herself from it.”
It rejected Ms Maistry’s arguments that advocates had no duty to the court to be frank and that she had not committed misconduct by positively misleading the court.
She was an experienced solicitor who knew “full well” the terminology used by advocates.
When the claimants’ solicitor wrote to Ms Maistry asking why she had implied she was a barrister, she replied that she had only introduced herself as an advocate and that the case was not hers.
The tribunal found that, on the contrary, she was not fresh to the case and had therefore sent a misleading email to the claimants’ solicitor. She had acted with a lack of integrity, it decided.
Also, in response to a request for documents, she sent the Solicitors Regulation Authority fake attendance notes falsely claiming that ES’s supervisor was a solicitor colleague. He testified he did not recall ever discussing the case with ES.
Ms Maistry admitted creating the attendance notes herself, but sought to blame ES, who had by this time left the firm, for failing to adhere to her colleague’s advice.
She was “very remorseful” but claimed it was not deliberate falsification; instead “an honest and erroneous belief that this would have taken place”.
However, the tribunal said the notes were “contrived” and believed the solicitor “had been trying to prove supervision had taken place… with a view to blaming somebody else for her own shortcomings”.
Deciding sanction, the tribunal recorded she was an “experienced solicitor” who had sought to “deflect criticism against her personally” by misleading a judge, then to “distance herself” from the case, and finally to avoid regulatory action by “attempting to mislead her own regulator”.
While her initial response to the judge may have been spontaneous, her subsequent actions were planned.
She had been dishonest, and her actions “calculated and repeated”. She had been fined by the SDT previously.
It also found she was not a credible witness: “She had a pre-disposition to not tell the truth, she would seek to blame others for errors, and she would try to put a gloss on situations that caused her difficulty.”
The tribunal concluded: “To allow the respondent to remain a member of the profession would undermine public confidence in it.”
Ms Maistry was ordered to pay costs of £4,500.
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