SDT: Exceptional circumstances
A solicitor who twice misled a potential employer into believing he was still in a job – when in fact he had been sacked six months earlier – has been suspended indefinitely.
The Solicitors Disciplinary Tribunal (SDT) said it would have struck off Lawrence Peter McCullagh but for the fact that at the time he was suffering from significant mental health issues.
It said: “The two medical experts had agreed that the respondent’s OCD (obsessive compulsive disorder) amounted to a disability, he suffered from depression and the anxiety with which he suffered generally was heightened by his sleep cycle having been reversed, the fact he was mourning his father’s death whilst his mother’s serious condition was deteriorating markedly, and he was extremely worried about having reported [his former boss] to the [Solicitors Regulation Authority] and was involved in employment tribunal litigation at the time having been unemployed for some six months.”
Admitted in 1999, Mr McCullagh was employed at ‘S & Co’ from June 2013 to November 2014 but was sacked for gross misconduct.
In May 2015, he sent a CV to fellow Northamptonshire firm Vincent Sykes & Higham (VSH) that said he was still working at S & Co. In two interviews a week apart later that month, he responded to questions about his notice period by saying it was one month.
He was taken on by VSH from 1 July but dismissed on 30 October, a few days after the firm learned what had happened. It blamed a downturn in work and poor performance, rather than being misled, for this.
Mr McCullagh said he had forgotten to update his CV and did not check it before sending it to VSH.
His consultant psychiatrist said all the personal issues he was dealing with “could have led to him being forgetful about whether or not he had updated his CV”.
The SDT said it “may be plausible that the respondent may not have updated his CV during this time and that this task may have got ‘lost’”. As it could not be sure he acted deliberately, it cleared him of misleading VSH.
The solicitor said that when he was first asked about his notice period, he thought it was a question about how long it had been at S & Co – an answer the SDT did not find credible.
When asked in the second interview – by which time he was aware of the error on his CV but did not correct it – he said he interpreted the question as being about when he could start.
The SDT found that Mr McCullagh had wanted a month “to sort things out”. This was understandable in the circumstances, but “he achieved this by giving a misleading answer to a question about notice”.
Giving these two misleading answers – aggravated by his failure to correct the error on the CV – lacked integrity and was dishonest.
The medical evidence did not show that Mr McCullagh was unable to provide an “accurate, non-misleading, answer to the simple questions which had been posed”.
In deciding sanction, the SDT said: “The tribunal accepted that the respondent’s medical condition, in particular the effect of the intrusive OCD thoughts and the difficulty switching from one set of thoughts to another and the potential to be distracted from his train of thought by unexpected questions, referred to by the medical experts, reduced his culpability somewhat.
“The tribunal considered that these factors hampered the respondent’s ability to deal spontaneously with the issue of his employment when it arose in the first interview, albeit not to an extent that removed responsibility for his actions.
“By the time of the second interview, one week later, by which time he had become aware of the error with the dates of employment on his CV, the issue would have been less unexpected.
“Nevertheless, the tribunal accepted that his misleading answer in the second interview was also spontaneous and not part of any calculated plan.”
Also, the misconduct lasted a matter of seconds each time, and Mr McCullagh had an otherwise unblemished record, producing “positive testimonials which spoke about his professionalism and integrity”.
Though the solicitor had known what he was doing was wrong, “there was considerable force in the respondent’s submission that a ‘perfect storm’ had conspired to contribute very significantly to the misconduct found proved”.
The SDT concluded this fell within the small category of cases where exceptional circumstances meant that a strike-off was not appropriate.
“Given the nature, scope and extent of the dishonest conduct, the tribunal did not consider that the protection of the public and reputation of the profession required this ultimate sanction,” it said.
The medical evidence indicated that there was “a realistic prospect” of Mr McCullagh becoming “more resilient and may recover from the medical conditions such that he would be capable of functioning at a level where he no longer represented a material risk to the public or to the reputation of the profession”.
The SDT decided that an indefinite suspension was struck the right balance.
Mr McCullagh, who was also ordered to pay costs of £15,000, will have to apply to the SDT to lift the suspension should he wish to return to practice in the future.
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