Law Report: Solicitors' conduct less culpable: Re Solicitors - Queen's Bench Divisional Court. (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Alliott and Mr Justice Buckley), 19 July 1993

In exceptional circumstances, a court could go behind admissions of guilt by a solicitor charged with disciplinary offences; and where the conduct concerned was less culpable than that to which admission was made, the court could substitute a lesser charge.

The Queen's Bench Divisional Court allowed, to a limited extent, an appeal by two solicitors, Roman Kazimierz Sergot and Stephen Richard Connolly, from a ruling of the Solicitors' Disciplinary Tribunal on 12 December 1991.

The appellants were charged together with their erstwhile partner, Allan Gallagher, with a list of charges from (a) to (m). The two appellants were each charged with: (a) drawing money from a client account other than as permitted by rule 7 of the Solicitors' Accounts Rule 1986, contrary to rule 8; (ii) failing to maintain properly written account books, contrary to rule 11; and (iii) permitting a cheque drawn on their client account to be dishonoured upon presentation.

Each charge was prefaced by an allegation of 'conduct unbefitting a solicitor'. Gallagher was struck off the Roll. The two appellants were reprimanded.

Stuart Stevens (Butcher & Barlow, Manchester) for the appellants; Timothy Dutton (Cartwrights Adams & Black, Cardiff) for the Law Society.

LORD TAYLOR LCJ, giving the judgment of the court, said the appellants' partnership had two offices in Manchester. The appellants were based in Boothstown. Gallagher was based at Peel Green. The offices were run separately, with separate client accounts.

When the Peel Green office accounts were inspected by the Solicitors' Complaints Bureau, a shortfall of pounds 200,000 was found. There had been improper withdrawals of about pounds 212,000. The account was operated solely by Mr Gallagher, who was alleged to have dishonestly removed funds from it.

After Mr Gallagher left the practice, the appellants paid a sum due to a client from the Peel Green office account with a cheque which was dishonoured.

Responsibility for the client accounts at both offices rested with all the partners. The appellants admitted they were in breach of the specific Solicitors Accounts Rules mentioned in the charges and had no defence. But they argued that their conduct in relation to all three charges had wrongly been given added gravity by being treated as 'conduct unbefitting a solicitor'.

The Law Society argued that the appellants were solicitors who knew the law and were advised and represented before the tribunal by another solicitor, experienced in disciplinary cases. Their pleas were both informed and unequivocal.

Although the High Court would usually decline to go behind such admissions, there were circumstances when exceptionally the court would do so in the interests of justice. Here, it seemed to have been assumed that because breaches of the Accounts Rules were absolute offences, the offences as charged were also absolute.

The tribunal drew no distinction between breaches of the Rules simpliciter, and conduct unbefitting a solicitor. Yet its findings pitched the appellants' default at a much less culpable level than could be characterised as conduct unbefitting a solicitor.

In these unusual circumstances, the appellants ought not to be tied to their admissions of such conduct; and on the basis of the tribunal's findings, their liability under charges (a) and (c) should be limited to breaches of rules 7, 8 and 11 of the 1986 Rules. The appropriate lesser findings would therefore be substitued, under section 49(4) of the Solicitors Act 1974.

As to charge (d), the situation was different. While the actual conduct giving rise to charges (a) and (c) was wholly that of Mr Gallagher, the dishonoured cheque was jointly issued by the appellants a month after Mr Gallagher had left. They knew of the deficiency in the account. In the circumstances, it was deplorable to issue a large cheque without further inquiry. Accordingly, they were right to admit conduct unbefitting a solicitor in regard to charge (d).

A reprimand being the minimum sanction the tribunal could impose, it was rightly imposed in respect of all three charges.