Bolton v Law Society

A court should interfere with a professional disciplinary sanction only in a very strong case. The expert tribunal is best placed to assess the seriousness of professional misconduct. An appellate court must not substitute its own view of the appropriate sanction.

Solicitors must act with complete integrity, probity and trustworthiness. Proven dishonesty will almost invariably merit striking off. A non-dishonest lapse remains very serious; striking off may follow, and only a very unusual and venial case will ordinarily merit less than suspension.

Professional sanctions principally protect the public and maintain confidence in the profession. Personal mitigation therefore carries limited weight. Exceptional delay may nevertheless make the eventual reinstatement of an otherwise proper suspension oppressive.

Bolton v Law Society concerned a solicitor who disbursed money advanced by a building society before the contemplated conveyance and security had been completed. Part of the money was paid to his wife. The shortage remained for about 16 months, although the advance, interest and costs were eventually repaid.

The Solicitors Disciplinary Tribunal found that the solicitor had acted honestly but that his conduct was wholly unacceptable and very serious. It ordered his suspension for two years. The Queen's Bench Divisional Court quashed that order and substituted a £3,000 fine, relying on the absence of dishonesty, the practical consequences of suspension, proportionality and additional testimonials.

The Law Society appealed. The central questions were whether the Divisional Court had been entitled to substitute its own sanction and, if not, whether the suspension should be restored after the delay caused by the appellate proceedings.

1. Disposition. The appeal was dismissed unanimously, with no order as to costs. Sir Thomas Bingham MR delivered the leading judgment. Rose LJ agreed with both the proposed order and his reasons, while Waite LJ agreed with the order.
2. Appellate restraint. Sir Thomas Bingham MR applied the principle stated in McCoan v General Medical Council [1964] 1 WLR 1107. A very strong case is required before an appellate court interferes with a sanction for professional misconduct, because the disciplinary tribunal is best placed to assess its seriousness. The Divisional Court had impermissibly substituted its own view of the appropriate penalty.
3. Professional standards and sanctions. Lawyers must discharge their professional duties with integrity, probity and complete trustworthiness. Proven dishonesty will almost invariably result in striking off, irrespective of powerful mitigation. Conduct falling below the required standards without proven dishonesty is less serious, but remains very serious. Striking off may still be justified, and only a very unusual and venial case will ordinarily warrant a sanction below suspension. The choice between striking off and suspension is primarily for the expert tribunal.
4. Purpose of discipline and mitigation. Disciplinary sanctions may punish and deter, but their principal purposes are to prevent repetition and to maintain public confidence in the profession's collective integrity. Personal hardship, testimonials, rehabilitation and the likelihood that the practitioner cannot rebuild a practice are relevant, but carry less weight than in criminal sentencing. They do not answer the essential need to preserve well-founded public confidence.
5. Application. The Tribunal had expressly considered the absence of dishonesty and had given full weight to the mitigation. Misuse of client money was a flagrant breach of elementary duties, and the family relationship increased the need for scrupulous conduct. Suspension was neither disproportionate nor practically equivalent to striking off. The additional testimonials could have carried only limited weight.
6. Exceptional delay. Ordinarily the Court would have allowed the appeal and restored the Tribunal's order. The suspension had never taken effect, however, and restoring it two and a half years after it was imposed and 16 months after it was quashed would have been oppressive. The Divisional Court's fine therefore remained undisturbed. Appeals of this kind by the Law Society should remain exceptional.

1. Court of Appeal. In Bolton v Law Society [1993] EWCA Civ 32, the court dismissed the Law Society's appeal. It held that the Divisional Court had erred, but declined to restore the suspension because the elapsed time made that course oppressive.
2. Queen's Bench Divisional Court. On 7 July 1992, the court allowed the solicitor's appeal, quashed the two-year suspension and substituted a fine of £3,000.
3. Solicitors Disciplinary Tribunal. On 23 May 1991, the Tribunal found serious misuse of client money but no deliberate dishonesty. It ordered suspension from practice for two years.