The Case of a “Lost Briefcase”, Some “Common Sense” and “Context”

SNAPSHOT

In a judgment of the Solicitors Disciplinary Tribunal (England) in the matter of Re Claire, Case No. 12005-2019, dated 25 March 2020, a junior solicitor (the respondent) was found to have misled her employer law firm over the course of about a week regarding the circumstances in which a briefcase containing confidential client documents had been lost on a train while she was travelling home. In a fully reasoned judgment, arising out of a disciplinary hearing lasting some four days, the tribunal ordered that the respondent be struck off.

Following the respondent’s appeal to the English High Court, the tribunal’s decision has (in the main) been quashed by a judge – notably, pursuant to a consent order agreed by the Solicitors Regulation Authority (SRA) with the case due to be remitted back to the tribunal. Aspects of the case appear troubling and contain some lessons for the regulation of lawyers irrespective of jurisdiction. The case and some of its unusual background circumstances have also received much comment and social media attention.

SOME BACKGROUND

The respondent is a young solicitor who had been qualified for less than a year at the time and had recently joined the law firm. It so happens that the law firm had acted for the SRA in a matter involving a complainant who had been in dispute with the SRA concerning (among other things) their personal data. The respondent, together with another solicitor, had been involved in the SRA’s defence (under the supervision of a partner). With the knowledge of one or more of her colleagues the respondent borrowed a locked briefcase from a colleague (which contained confidential documents relating to the complainant) with the intention of working on the case over a “public holiday” weekend in May 2018.

A series of events followed that proved catastrophic for the respondent, beginning with the loss of the briefcase on the train on her way home. In what appears to have been a state of panic, the respondent failed to inform her employer of the lost briefcase and papers for about one week, until matters came to a head in the office on or about 1 June 2018 – indeed, before then the respondent appears to have given an untrue account to her employer concerning when the briefcase went missing. During the week in question the respondent’s life appears to have fallen apart.

The seriousness of the matter cannot be disputed and the respondent appears to have been dismissed about two weeks later.

Inevitably the complainant learnt of the incident and complained to the SRA. Disciplinary proceedings against the respondent followed.

In brief, it was alleged that the respondent’s explanation to her employer as to when she had lost the briefcase showed a lack of integrity or amounted to a failure to uphold the trust that the public expects of a solicitor. Dishonesty was not an essential ingredient to prove these allegations, but it was also alleged that the respondent had acted “dishonestly”. The respondent could not afford legal representation, so she represented herself at the hearing.

The tribunal determined that four of the five allegations against the respondent had been proven to the requisite standard of proof (including, the allegation of dishonesty).

SANCTION

The tribunal considered that the seriousness of the respondent’s misconduct was “high” and that, in light of its finding of dishonesty, it had little alternative but to order that she be struck off and pay the SRA’s costs (as assessed by the tribunal).

APPEAL

As a result of the media attention that the case attracted, the respondent secured some formidable legal representation and, apparently, “crowdfunding” for her potential costs exposure. Tellingly, the respondent’s appeal was allowed by consent without any written decision by the court. It appears that the respondent’s lawyers prepared new evidence concerning the state of the respondent’s mental well-being and/or lack of legal representation such that the SRA had little choice but to concede the appeal.

The tribunal’s judgment is publicly available – indorsed with a stark notice at the top of the front page regarding the consent order approved by the court.

SOME REFLECTION (FOR NOW)

There has been much comment and social media attention concerning the case of Re Claire – much has focused on the issue of the respondent’s lack of legal representation and/or state of mind during the fateful week in question. However, there are arguably other equally (if not more) important issues that arise for the legal profession. For example:

  • Once an allegation of dishonesty had been included in the complaint and determined by the tribunal, the respondent faced the real prospect of being struck off (the ultimate sanction) – irrespective of her mitigation. In the apparent absence of credible expert evidence as to the respondent’s mental well-being at the material time the tribunal appears to have considered that the ultimate sanction should follow, based (in part) on previous precedents arising out of other cases involving dishonesty – as opposed to (for example) a fine and/or suspension. This is (on the face of it) a rather troubling conclusion and, if correct, the relevant legal principles deserve appellate court clarification in order to assist future tribunal proceedings.
  • While dishonesty in the workplace can never be condoned, it will have different contexts. For example, the respondent did not act for any financial gain and the complainant’s loss (as to their personal data) could, presumably, have been compensated. If the respondent’s behaviour is considered to have amounted to allegedly serious or “very serious” misconduct at the “high” end (paras 40 and 66 of the tribunal’s judgment) what say (for example) of a law firm partner who misappropriates client money or deals in the proceeds of crime or commits flagrant and serious breaches of the account rules? The context is important.
  • At one point, the tribunal’s judgment observes that “common sense” suggests that a solicitor of “any level of experience” would know to report a loss of client documents promptly to their employer (para. 38 of the judgment). That ought to be true and emphasizes the need for employers to have the right policies and ongoing training in place (including, for new recruits) – as the respondent’s former employer clearly did – backed by an appropriate work culture. It is also worth noting that the best law of regulation (for regulators and those that they regulate) is itself “common sense”.
  • Had the tribunal’s decision been allowed to stand it is difficult to see how it would have encouraged lawyers to self-report innocent data breaches to their employers. This concern is only heightened in a COVID-19 environment, with more lawyers and staff working from home and many of the longer-term serious consequences of the pandemic yet to be seen.
  • Going forwards, regulators will need to prioritize which matters to take to a disciplinary tribunal and which charges to lay. Resources are limited (particularly, in a COVID-19 environment) and should be targeted at the more serious misconduct referred to above (by way of example).
  • Following on from Re Beckwith (Industry Insights, March 2021 – “Boundaries of Professional Conduct and Private Life”) concerns have already been expressed about “regulatory overreach” or whether some prosecutors may be conditioned to see certain alleged misconduct in a less than detached manner.
Jurisdictions

Senior Consultant and Accredited Mediator, RPC

A commercial disputes lawyer with over 35 years' experience, David has extensive experience in handling the defence of professional indemnity, financial lines and other special risks claims as well as advising insurers in relation to such claims.

David has worked on the defence of claims in various jurisdictions including England, Hong Kong, Singapore, Malaysia, the PRC, Taiwan, Bermuda and the BVI.  He also has significant experience in handling regulatory and disciplinary matters.

He has considerable experience providing general risk management advice to professionals such as accountants, solicitors, insurance brokers, surveyors and stock-brokers. 

Most recently, he has been developing a practice as a commercial mediator. David is accredited as a mediator by both the Centre for Effective Dispute Resolution (CEDR) and the Hong Kong Mediation Accreditation Association Limited (HKMAAL).

Partner, RPC