Diary of a private client practitioner: 10th November 2023

It is good to celebrate success, but is it more important to learn the lessons of a mistake or failure?

 As much of the legal press in recent weeks seems to have been focused on the Solicitors Regulation Authority and their involvement with Axiom Ince, this week my thoughts turned to mistakes and lessons learned…

Whether you are at the beginning of your career, several years in, or been around for far more than you care (or can) remember, it is inevitable that you have, or will, make a mistake.

Mistakes are not limited to the legal profession. Mistakes happen in every walk of life.

However, whereas we are encouraged to publish and splash our successes around to show the world, it does not seem as though mistakes are talked about, and the focus is largely on brushing these under the carpet.

To me, it seems important that we should all be encouraged to talk openly about mistakes without blame or judgment. From my own experience, some of the biggest learning points in my career have been from making mistakes and learning from these. Naturally, this does not mean that these mistakes go unchecked, but more that they can be identified and learnt from.

Learning from mistakes, whether your own or others, is surely a good thing? If the mistakes continue to be made, this is when there is a problem as it would suggest you aren’t learning from them. Unfortunately, as professionals working in law, there seems to be a high expectation for us to perform and on getting the basics right from the moment we start our working life. Mistakes often seem to imply that we are incompetent or careless. Throw into the mix that this may also come with allegations of professional negligence, and the involvement of the professional indemnity insurers (should the mistake be something that requires their involvement), it can be very difficult to face the music.

Unfortunately, most of us will face allegations of professional negligence at some point in our careers.

Hopefully, not too many times. Sometimes, the allegations can be worn like a badge of honour, particularly in litigation, where this can be part of the wider strategy to try and reach a successful compromise. However, where the allegations have merits, I am sure we hear about the horror stories where someone has been referred to the Solicitors Disciplinary Tribunal.

As I sat listening to a speaker at a recent event, I was reminded that there are over 200,000 solicitors registered to the roll as of September 2023 in England and Wales. In comparison, it appears that less than 200 solicitors are struck off each year. However, these are the ones that often stick in our mind and splashed across the legal press. Although some of these (should, I hope) be self-explanatory, some examples of those that have been struck off over the last few years – with a focus on private client, include solicitors who have:

  • Misappropriated funds from the estates of clients. Often this will happen where an estate is left to charity, and the charity(s) may not know of their entitlement to funds on death.
  • Significantly overcharged clients.
  • Transferred client funds without authorisation or consent from client. In one case, a solicitor had used client money to fund his gaming addiction.
  • Misled clients about the progress of their cases and made untrue statements. In one case, a solicitor had lied about an application for probate having been made, where no work or very little had been completed at all.
  • Instructed trainee solicitors to forge documents. In one case, the trainee was instructed to amend the date on a mortgage deed in a conveyancing transaction as it had not been completed in the time provided, and no extension had been sought.
  • Committed serious sexual misconduct in the workplace – in one case, the SDT found 70 acts and/or incidents were proven on a balance of probabilities towards a junior member of the profession by a director.
  • Inadvertently left sensitive documents on a train and lied to colleagues to cover up that it had happened.

So, what can be learned from those that have been subject to strike off in recent years?

  • Try not to panic. We are all human and can make mistakes. What matters is how you deal with the mistake and come clean about it. Collect the facts, as they will remain the same regardless of how you feel about them.
  • Do share the mistake with your supervisor and colleagues. Do not conceal it or leave it up to someone else to discover; this is a remedy for disaster. It is important to look to address the mistake as soon as possible, and (where possible) maintain the trust of your firm and client(s).
  • Even if you have to own up to something, do not be dishonest. In lots of cases before the SDT, the finding of dishonesty related not to the mistake itself, but the attempts to cover them up. A finding of dishonesty or concealment means a strike off is almost inevitable.
  • Learn from your mistake so you don’t repeat it again. This may require your firm changing some processes so that it can ensure it is not just you learning from the experience and it also minimises the risks of it happening again.

An unfortunate trend, which is very difficult to swallow, is the number of cases before the SDT that seem to involve paralegals, trainee solicitors, and newly qualified solicitors. These individuals are at the very start of their legal careers and in some cases the SDT has struck them off before they have even qualified. Often, the reasons cited for their actions relates to the extreme pressure someone is placed under at work, and/or the toxic work environment they are in. This invariably impacts on their mental health, including stress, depression, anxiety, and can often be a contributing (if not the key) factor for the actions that they took. As a profession, there is already a high prevalence of burn out, so this is not too surprising. However, at the moment, it does not appear as though the firm(s) responsible for the extreme pressure, which can include unrealistic billing targets and long hours, are being held accountable for their role in the actions taken. If this continues, surely this means it is only a matter of time before it happens again, or that the individual being struck off the roll, is the scapegoat for a much wider and prevalent issue within the firm, which remains unaddressed?

A final observation from me (and one that I find alarming) is that although it seems that a finding of concealment or dishonesty in the SDT will invariably lead to being struck off, the same cannot be said of claims involving alleged sexual misconduct. In several cases, it seems that these solicitors face a hefty fine, but are permitted to continue in practice. In view of the #metoo campaign, and calls to support minorities to continue to grow and progress in the legal profession, it does seem odd that such behaviour doesn’t seem to attract a greater punishment, particularly at the risk of bringing the professional into disrepute. Maybe this is something that will change in the future, particularly given the number of high-profile cases that continue to be referred to the SDT and that several of these have involved people in very senior positions and their actions towards junior members in the same firm.

Everyone makes errors; how you own up to your mistakes, deal with them, and learn from them is what stands you apart from others. How your mistake is handled is what counts, and hopefully law firms can continue to move towards an open culture so we can all learn from errors and/or issues that have been made before, or can look to provide training to ensure that they don’t happen again.

Signing off this week on an upbeat note (and also a story of overcoming a ‘failure’ mistake. In 2022, I went to Ironman Canada and (disappointingly) didn’t get round after fainting about 12km from the end of the run. I am pleased to report (and following on from my previous column) that on 3 September 2023, I successfully completed Ironman Wales in Tenby, which is well known as being one of the hardest courses on the planet due to the strong currents in the swim, huge elevation (hills) in the bike and run. Signing up for the ‘harder’ course after not getting round the event in 2022, I was determined to overcome and learn from the mistakes of the previous event. Whilst it took a lot of mental, and physical strength to get round, it was 100% worth it. 15 hours and 45 minutes to ‘tame the dragon’…

Sarah Bolt, Managing Associate at Freeths LLP

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