What any person in my position would do is…

Who is responsible for ethical breaches when a case is run on a team basis? This is one of the interesting questions (for me) raised by the depressing case of Shaw v Logue
[2014] EWHC 5 (Admin)
. It is an unusual case, not least because it arose from Solicitors’ Disciplinary Tribunal proceedings brought not by the SRA but by a Mr Logue. The two solicitors in question (one an experienced partner and the other an assistant with four years PQE) had taken proceedings against Mr Logue for their clients which was funded (in part at least) by a third party interested in the outcome of the dispute (i.e. not a ‘normal’ litigation funder). Alarm bells ringing already, I imagine, that litigation involved a without notice application for an injunction which, it was alleged, included evidence given by the solicitors which was misleading and, at times, dishonest. At over 40,000 words I do not have the energy, to go into more detail than that on the facts save to say that Mr Justice Jay eventually concluded this:

The issue at this stage is whether the SDT’s key conclusions that Mr Shaw [the Partner] was dishonest in a number of respects and that Mr Turnbull [the Assistant] was dishonest in one specific, albeit important, respect are ‘plainly wrong’. My function is to review the evidence and to apply to it a strict yardstick; it is not to second-guess the SDT’s Findings or to substitute my views for theirs even if, for example, I were of the opinion that the conclusions are probably wrong (for the avoidance of doubt, I do not hold that opinion). ‘Plainly wrong’ imports a higher onus of persuasion, and for good reason: the reviewing Court does not see and hear the witnesses.

In short, I do not agree with Mr Dutton that any of the SDT’s conclusions are unsustainable or ‘plainly wrong’.

…in my judgment there was a sufficient evidential basis for the core Findings in the sense that it is possible for this Court to see and understand how the SDT could have concluded, in particular, that the Appellants were subjectively dishonest.

…I do not see how on the material before me I could come properly to the view that the SDT were not entitled to reach the conclusions they did.

…the case against the Appellants in relation to the various allegations before the SDT ranged in my judgment from being overwhelming at its highest (as regards the eighth affidavit of Mr Shaw) to fair at its lowest (as regards the alleged misrepresentation of the strength of the Liquidating Trust’s claim in the US proceedings, and the prospects of setting aside the default), with much intermediate territory. …taking into account the application of the criminal standard of proof. But even a case which looks only ‘fair’ to a reviewing Court is sufficient to justify a finding of dishonesty by a tribunal which has seen and heard the witnesses and come to its own conclusions. Furthermore, at this stage the reviewing Court is able to bear in mind that a tribunal could treat a sure finding of dishonesty on one allegation as supporting a finding of dishonesty on another.

Mr Justice Jay gives an extensive review of the evidence and it is fair to say it makes utterly depressing reading. All litigators, and particularly young litigators, should read the judgment [and for their purposes they can stop when he gets to the other meaty bit of the case which gives the SDT a substantial critique for not giving proper reasons on all but one of the dishonesty findings]. The facts are an object lesson in how not to respond when mistakenly or otherwise a court has been misled. At some point, and the judgment makes clear that point may have been much earlier than the solicitors were willing to admit, covering up one’s mistakes (or worse) leads to conflagration.

The case contains a worthwhile discussion of obligations towards frankness when making without notice applications and as well as obligations to disclose third party funding. At its heart, too, is Twinsectra Ltd v Yardley and others [2002] 2 AC 164 on the objective and subjective tests for dishonesty to be applied in such situations.  

The problems crystallise when Counsel appears to have been instructed by the solicitors in a way which materially misled the court. That was not corrected but, it is alleged, compounded by what happened subsequently in correspondence with Mr Logue’s solicitors. There is an attempt to minimise the seriousness of what has happened as simply a ‘muddle’. Obfuscation and blame shifting occurs.

At one stage the judges says this:

Mr Turnbull was closely cross examined at the SDT hearing about this correspondence. ….one does receive the sense that Mr Shaw took charge of the correspondence with Withers [Mr Logue’s solicitors], that Mr Turnbull did at some stage express his concerns to Mr Shaw as to whether the Court had been misled, and that he may well have reviewed the transcript, but if he did he cannot recall when.

The judge finds:

Mr Shaw must have seen the transcript before he wrote to Withers on 13th August [which would have made clear the court had been misled]. It follows that Mr Shaw did nothing to correct the misunderstanding on that date; instead, he chose to compound it.

…Mr Shaw’s answers to Mr Wardell’s persistent questioning are revealing, and speak for themselves [A3/tab 4/72]:

Q. But you are an officer of the Court and you are duty bound, if the Court has been inadvertently misled, you are professionally bound to make sure it is corrected.

A. And it was corrected. I made sure it was corrected. I made sure that your client was not out of pocket.

Q. But you never corrected-

A. It was sorted out”

Eventually matters come to a head.

It was clear an affidavit of his supervising partner “needed urgent correction” a court had been misled and materially so.

It is at this stage that Mr Turnbull’s better judgment had clearly deserted him.

…It is clear to me that in the thirty-two minute period between these key emails the seeds of disaster were sown, and the professional careers of Messrs Shaw and Turnbull were placed in clear jeopardy. I appreciate that this was quite late in the evening and that it had been a long day, but at the very least we see evidence here of serious errors of judgment. On the face of things the Appellants’ instincts were to cover their own backs rather than to tell the Court the truth and apologise. Had they done so the discharge hearing might have been resolved more rapidly in Mr Logue’s favour – with all the concomitant grief in relation to Stewart Law’s CFA and the potential exposure of Candy/CPC to an application under s.51 – but these were or ought to have been collateral considerations.

Instead a further affidavit was sworn by Mr Shaw of which Mr Justice Jay says of a key passage, “This was untrue.”

The problems face by an assistant in this position are manifold. They are compromised by their own culpability or contribution to any mistakes or (if there were any) prior dishonesty. My sense from talking to lawyers in difficult ethical positions is that responsibility is shifted implicitly or overtly to the partner. The dangers are obvious, but as an assistant in a law firm the economic and social need is to serve the partner. The client (and their case) is theirs. They get to take the tricky decisions. The judgment is an object lesson that this is not an approach the courts (or the SDT) will support, for obvious reasons. Here are some relevant excerpts from the Jay judgment relevant:

Mr Turnbull accepted before the SDT that Mr Shaw’s seventh affidavit was incorrect [A3/tab 5/72], that he discussed the matter with Mr Shaw [A3/tab 5/74], that when he dug out the 12th April email on 6th July he realised that the Court had been misled in Mr Shaw’s first affidavit [A3/tab 5/page 76], and that [A3/tab 5/78/lines 16-19]:

“-obviously I’d spoken to Andrew about this and the view was taken is you know, ‘we hadn’t’, you know, we had overlooked it, hadn’t appreciated the significance of it….

Thus, ‘overlooked’ really meant, ‘had not appreciated the significance of’. Mr Turnbull subsequently accepted that the Court needed to be given an urgent, honest and accurate explanation of the true facts [A3/tab 5/80/line 5]. I need to set out the critical part of the cross examination in full:

“Q. But you must have been feeling deeply uncomfortable about this?

A. Well, I … you know, I went to Andrew about it, I mean …

Q. So the truth is that you bowed to his greater experience? …

A. I deferred to him to decide what to do, I mean – I think as any person in my position would have done that.

Mr Turnbull may yet escape the striking off which was his initial punishment.* Because the SDT reasoning was found to be inadequate on a great many of the allegations then there is some possibility that a reconstituted panel will decide a different sanction (although they are not entitled to overturn the finding of dishonesty). There need to be exceptional circumstances to not get struck off for a finding of dishonesty. The first time they found that, ‘he should have had the strength of character to say no’. There is a suggestion that more evidence may yet emerge, but whether it makes any difference remains to be seen.  I feel a dreadful sympathy for him.  Young and not in control, he did what he was told, but professional responsibilities kick in before then.

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