Lim v The Law Society

A solicitor who creates a false document to influence salary negotiations may act dishonestly even if the prospective employer does not rely on it. Dishonesty is assessed by the ordinary standards of reasonable and honest people, together with the solicitor’s awareness that those standards regard the conduct as dishonest. Where dishonesty is proved, striking off is the usual sanction unless exceptional circumstances exist. The High Court must respect the expertise of the Solicitors Disciplinary Tribunal and should interfere with sentence only where it is clearly inappropriate.

The claimant appealed under section 49(1)(b) of the Solicitors Act 1974 against the decision of the Solicitors Disciplinary Tribunal to strike him off the Roll of Solicitors. He had created a false payslip showing an inflated remuneration figure and supplied it to a prospective solicitor employer during the period of salary negotiations.

The tribunal found that the document had been created dishonestly, in breach of Rules 1 and 3 of the Solicitors’ Overseas Practice Rules 1990, and ordered striking off. The appeal challenged the factual findings, the dishonesty test, the tribunal’s treatment of the evidence and the proportionality of the sanction.

1. The appeal was dismissed. The claimant was ordered to pay the respondent’s costs assessed at £7,500.
2. The tribunal was entitled to find that the false payslip was created during, and for the purpose of advancing the claimant’s position in, salary negotiations. The claimant’s own evidence established that the negotiations were not concluded when the payslip was submitted. The fact that the prospective employer did not rely on the document did not undermine that conclusion.
3. The correct test for dishonesty, stated in Twinsectra Ltd v Yardley [2002] UKHL 12, required both an objective element and a subjective element. The conduct had to be dishonest by the ordinary standards of reasonable and honest people, and the claimant had to know that it was dishonest by those standards. The tribunal addressed both elements and its findings were supported by the evidence.
4. Where dishonesty by a solicitor is proved, striking off is the usual sanction unless exceptional circumstances exist, as illustrated by Bolton v the Law Society [1994] 1 WLR 518. The fact that the false document was not relied upon, that the claimant was under pressure, that the incident was isolated, and that another regulator took no action did not amount to exceptional circumstances.
5. The approach in Salsbury v the Law Society [2008] EWCA Civ 1285, [2009] 1 WLR 1286 applied. The tribunal was an expert and informed body, and the High Court should pay considerable respect to its sentencing decision. Even a borderline case would not justify interference unless the sentence were clearly inappropriate. This was not such a case.

• High Court (Administrative Court): appeal from the Solicitors Disciplinary Tribunal dismissed; the striking-off order upheld and costs ordered at £7,500.
• Solicitors Disciplinary Tribunal: on 14 August 2008, found the allegation proved and struck the claimant off the Roll of Solicitors.