Yerolemou v The Law Society

On an appeal against professional disciplinary sanction, the court must respect the expertise of the specialist tribunal but may reassess the penalty in the light of all the circumstances. Striking off may be justified by serious professional misconduct even where there is no dishonesty or personal gain. Persistent failure to perform professional undertakings and to respond to clients or the regulator is particularly serious because it damages confidence in the profession. Nevertheless, the sanction must remain proportionate and directed primarily to public protection and maintenance of professional reputation. Where those objectives can be achieved by suspension, striking off is excessive. A period of suspension may appropriately be combined with supervised return to practice.

The claimant appealed under section 49(1)(a) of the Solicitors Act 1974 against a decision of the Solicitors Disciplinary Tribunal dated 21 November 2006. The Tribunal had ordered that he be struck off the Roll after he admitted persistent failures to comply with conveyancing undertakings, keep clients informed, respond to the Law Society and provide accurate explanations.

The claimant relied on the absence of dishonesty or personal gain, the limited number of complaints compared with his workload, the absence of established loss and substantial personal and professional pressures. The central issue was whether striking off was proportionate and necessary to protect the public and maintain confidence in the solicitors’ profession.

Appeal allowed in part. The order striking the claimant off the Roll was quashed and replaced by a two-year suspension. On return to practice, he was to practise only under the supervision of a solicitor approved by the Solicitors Regulation Authority.

1. The court adopted the approach in Bolton v The Law Society [1994] 1 WLR 512, as considered in Nahal v The Law Society [2003] EWHC 2186 (Admin) and Langford v Law Society [2002] EWHC 2802 (Admin). The appellate court must give substantial respect to the specialist tribunal, but must examine the decision in the light of the whole circumstances and may interfere where the sanction is excessive.
2. Dishonesty and personal gain are not prerequisites for striking off. Persistent failure to comply with professional undertakings, particularly in conveyancing, and persistent failure to respond to clients and the regulator are serious misconduct. Undertakings are fundamental to confidence in the conveyancing system, as explained in Briggs v the Law Society [2005] EWHC 1830 (Admin).
3. The claimant’s misconduct remained serious, but the Tribunal had inadequately addressed the substantial mitigation. It had treated the claimant as having offered no explanation, although his professional, financial and personal pressures had been placed before it. It had also failed to explain the weight given to an earlier Tribunal appearance, which involved materially less serious matters and had not resulted in a disciplinary sanction.
4. Having regard to the claimant’s circumstances and the absence of dishonesty, the striking-off order was clearly excessive. Public protection and preservation of professional reputation could be achieved by suspension. The court therefore substituted a two-year suspension and indicated that the Solicitors Regulation Authority should consider imposing supervised practice under section 12(1)(f) of the Solicitors Act 1974.

Lord Justice Leveson agreed with the outcome and endorsed the importance of protecting the profession’s reputation, while accepting that the Tribunal’s assessment required intervention because relevant mitigation had not properly been addressed.

• High Court (Administrative Court): appeal under section 49(1)(a) of the Solicitors Act 1974 allowed in part; the striking-off order was quashed and replaced by a two-year suspension, with supervised practice to be considered by the Solicitors Regulation Authority.
• Solicitors Disciplinary Tribunal: on 21 November 2006, ordered that the claimant be struck off the Roll of Solicitors and pay £8,000 costs.