Solicitor who hid evidence of error “didn’t know what she was doing”

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SDT: 40-minute aberration

An assistant solicitor who had a panic attack after missing a hearing and tried to destroy evidence that she had been notified about it has avoided being struck off.

The Solicitors Disciplinary Tribunal (SDT) said it could not be sure that Susan Helen Orton, who was subsequently diagnosed as being on the autism spectrum, knew what she was doing at the time.

The events at the centre of her prosecution took place over 40 minutes, and the SDT found they were “an aberration from the personal and professional standards and conduct of the respondent”.

It decided to suspend her for six months instead and place restrictions on her return to practice.

Ms Orton, who qualified in March 2016, was a solicitor at Cheltenham firm BPE Solicitors. Shortly after 2pm on 29 August 2018, she received a telephone call from an employment tribunal (ET) asking why the firm had not attended a preliminary hearing for one of her cases that had been scheduled for 2pm.

She found no reference to the hearing in the electronic file but discovered a notification of hearing document within a paper bundle.

In what she told the Solicitors Regulation Authority (SRA) had been “a moment of sheer panic”, she put the copies of it in confidential waste bins.

Though five minutes later she told her supervisor, Tim Gofton, about the missed hearing, she did not mention the notification. He advised her to write to the ET and apologise, which she did within the hour. The email said that “unfortunately we did not have notification of this hearing”.

Mr Gofton then found an electronic copy of the notification and Ms Orton agreed to write to the ET again and correct the position.

At around 4pm, a secretary told Mr Gofton that she had seen Ms Orton take documents from two paper files and put them in separate bins. That evening, after working hours, Mr Gofton and the firm’s head of HR found them in the bins.

Ms Orton was dismissed for gross misconduct the following day. On 31 August, BPE reported what had happened to the SRA, while she self-reported two days later.

In the following months, the solicitor was diagnosed with Asperger’s syndrome, a form of high-functioning autism.

A consultant psychiatrist, Dr Singh, also diagnosed generalised anxiety disorder and told the SDT that Ms Orton’s behaviour was “not thought through” and due to her ways of perceiving and processing information, characteristic of Asperger’s syndrome.

Dr Singh said: “She was preoccupied with the notion of ‘making mistakes’ rather than paying attention to steps to take to rectify the situation.”

She continued that Ms Orton was “overwhelmed with anxiety which is significant in individuals with Asperger’s and impulsively reacted to it”; throwing away the notification gave her momentary respite from this.

Dr Singh’s evidence was that Ms Orton would not have been “the master of her own mind” at the time. She said the panic attack and the solicitor’s “rigidity of thinking” were responsible for what she had done.

She stated that panic attacks could last up to an hour and described Ms Orton as having had an hour of “distorted thinking”.

A psychiatrist commissioned by the SRA, Dr Bradbury, did not agree with the assessment of generalised anxiety disorder, attributing Ms Orton’s anxiety and depressive symptoms to the loss of her job.

But she agreed the solicitor had autistic spectrum disorder and described Asperger’s syndrome as one end of this spectrum. She considered that the Asperger’s was mild.

The medic said a panic attack with a sudden onset would typically reach its peak rapidly and be extinguished within 10 or 15 minutes. She described panic attacks as being “part of normal human experience and not a psychiatric condition”.

She concluded that Ms Orton “was not under any mental health impairment that would impede her ability to know what she was doing, to be able to distinguish between right and wrong and to understand the obligations that she is under in her duties as a solicitor”.

Ms Orton admitted that she misled Mr Gofton and the ET, and tried to conceal the notification.

However, the SDT decided that she did not breach principle 2 (showing integrity) or principle 6 (maintaining trust) in relation to the latter.

Despite their differences, the medical reports also contained areas of “substantial agreement” consistent with Ms Orton’s evidence, such as that her actions were borne out of panic and impulse, it said.

The tribunal “could not be sure that she could be said to have known what she was doing” when she disposed of the notification.

“An event which would no doubt be upsetting and stressful for any diligent solicitor was described by Dr Singh as causing the respondent to be ‘overwhelmed with anxiety’ which was said to be ‘significant in individuals with Asperger’s’.

“The tribunal was mindful that panic was something which could affect anyone and which may not, without more, provide a satisfactory explanation for conduct, and also that in her self-report (which predated her diagnosis) the respondent had stated that the only thing she was thinking about was her supervisor’s reaction.”

For the same reasons, the SDT concluded that she had not been dishonest in relation to the notification but had been in relation to what she told Mr Gofton and in the email to the ET.

It noted that she had reacted “appropriately” by speaking to her supervisor but then did not mention the notification.

“Given her ability to do this, the tribunal did not consider it credible that the respondent was so overwhelmed with panic and anxiety the she did not know what she was doing or did not realise she was failing to pass on a key piece of information.”

Deciding sanction, the SDT described Ms Orton’s reaction as “entirely spontaneous and irrational in that it was doomed to fail”, and that her Asperger’s and heightened anxiety “impaired her ability to some extent to react to her mistake in the way an individual without such a disability would be likely to do”.

But more significant than the personal mitigation was the fact that the dishonest conduct consisted of “two reactive, unplanned misleading accounts which took place within 40 minutes of one another”.

The SDT concluded: “The tribunal was mindful that whilst inevitably a serious matter, the dishonest account was not sustained and could not be described as calculated. The tribunal accepted [her counsel’s] characterisation of it as ‘bizarre’ and, if assessed as an effort at concealment, ‘hopeless’. The respondent’s record was otherwise unblemished.

“The tribunal accepted that this 40 minutes was an aberration from the personal and professional standards and conduct of the respondent.”

It therefore fell within the “small residual category of cases where there were exceptional circumstances which meant that strike off from the roll was not the appropriate sanction”.

A suspension was the right sanction, and given that she had been unable to practise for over two years, the SDT set the length at six months.

It also imposed conditions that mean, if she returns to practice, Ms Orton cannot be a manager or compliance officer at a law firm, must obtain the SRA’s approval of her employment, and must give her prospective employer a copy of the tribunal’s judgment and a medical report addressing her mental health condition, any treatment received and her capacity to manage that condition.

She was also ordered to pay costs of £20,000.