Law Society v Salsbury

An appeal against a Solicitors Disciplinary Tribunal sanction normally proceeds by review. The court must give considerable respect to the tribunal’s expertise, but may intervene where the sanction is clearly inappropriate. The earlier requirement for a very strong case overstates the threshold. Proven dishonesty ordinarily attracts striking off, subject to a very small residual category of exceptional cases. Protecting public confidence in the profession carries greater weight than personal mitigation. A solicitor’s entitlement to payment does not make dishonest alteration of a signed cheque a minor lapse or justify departure from the usual sanction. The tribunal must also take account of the solicitor’s Convention rights.

Brendan John Salsbury, a solicitor, was also the paid clerk to the trustees of the William Parker school. He altered a cheque issued by the trustees, increasing its value by £1,000, and obtained payment from the bank. Following a trial on 25 counts, he was convicted only of obtaining a money transfer by deception. The sentencing judge accepted that he believed the additional money was owed to him and imposed a conditional discharge.

The Solicitors Disciplinary Tribunal accepted that the altered amount was actually due. Nevertheless, it ordered striking off because of the dishonesty and the need to preserve public confidence in the profession. On appeal, the Divisional Court, [2008] EWHC 889 (Admin), substituted three years’ suspension. It regarded the circumstances as exceptionally placing the conduct at the bottom of the scale of dishonesty. The Law Society appealed. The principal issues were whether that assessment accorded with disciplinary principles and whether the Divisional Court had given sufficient respect to the tribunal’s decision.

1. The appeal would be allowed unanimously on the first two grounds. The Divisional Court had wrongly classified the conduct as exceptional dishonesty warranting departure from the usual sanction. It had also failed to give proper respect to the tribunal’s assessment. Examination of the third ground, concerning the wider effect on disciplinary penalties, was unnecessary.

2. The substantive principles in Bolton v Law Society [1994] 1WLR 512 remained good law. Solicitors must maintain integrity, probity and complete trustworthiness. The fundamental purpose of disciplinary sanctions was to preserve the profession’s reputation and public confidence. Personal mitigation remained relevant, but carried less weight than in criminal sentencing. Proven dishonesty ordinarily required striking off, although a very small residual category could justify another sanction.

3. The post-Human Rights Act 1998 authorities qualified the appellate approach. Requiring a very strong case before intervention was now an overstatement. Under CPR rule 52.11(1), an appeal normally proceeded by review. Absent an error of law, the High Court had to give considerable respect to the tribunal as an expert and informed body. It could nevertheless intervene if, after giving that respect, it was satisfied that the sanction was clearly inappropriate. The court also stated that the tribunal must take account of rights under articles 6 and 8 of the European Convention on Human Rights.

4. Altering both the words and figures of a signed cheque sufficiently to deceive the bank amounted in substance to forgery. Entitlement to payment required the solicitor to inform the client of the work and request payment. Dishonestly obtaining payment by altering the trustees’ cheque was a gross breach of professional conduct. Abuse of access to client funds undermined public confidence in a vital respect. Sir Mark Potter P additionally emphasised the dishonesty towards the trustees, who had neither authorised nor assented to the payment.

5. The tribunal had properly considered the circumstances and had reached a lawful, appropriate and proportionate decision. Even if the case had been borderline, its decision could not have been regarded as clearly inappropriate. The striking-off order would therefore be reinstated.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 1285 , allowed the Law Society’s appeal on the first two grounds and reinstated the tribunal’s striking-off order.
• High Court, Queen’s Bench Divisional Court: In [2008] EWHC 889 (Admin) , following a hearing on 18 March 2008, allowed the solicitor’s appeal under section 49 of the Solicitors Act 1974. It substituted three years’ suspension for striking off.
• Solicitors Disciplinary Tribunal: On 18 December 2007, ordered the solicitor to be struck off following his admission of conduct unbefitting a solicitor.