Beller v The Law Society

A solicitor who gives a professional undertaking must stand behind it personally and protect the person to whom it is given. Reliance on the apparent trustworthiness or instructions of a client is no excuse for releasing money contrary to the undertaking. A gross breach involving a substantial sum will ordinarily justify striking the solicitor from the Roll, unless wholly exceptional circumstances exist. Personal mitigation, including ill health, family circumstances, repayment of losses, admission of the breach and the fact that the solicitor was deceived, cannot reduce a sanction that is necessary to protect the standing of the profession.

The claimant, a solicitor and sole practitioner, appealed against the Solicitors’ Disciplinary Tribunal’s decision of 5 July 2007. The Tribunal found that he had failed to comply with professional undertakings and ordered that he be struck off the Roll. The claimant accepted the breaches and challenged only the sanction.

The principal breach concerned the release of approximately £2.2 million to a client, despite an undertaking to a trust that the money would be held to its order. The claimant relied on his trust in the client, the client’s dishonesty, the recovery of the funds and substantial personal mitigation. The central issue was whether those matters justified interference with the Tribunal’s decision.

1. Appeal dismissed. The sanction of striking the claimant from the Roll was within the range open to the Tribunal and required no intervention by the court.
2. A professional undertaking gives the recipient the solicitor’s own assurance that the specified obligation will be performed. The solicitor must protect the recipient and cannot rely on the apparent trustworthiness of the client or on the client’s instruction to act inconsistently with the undertaking. Any such approach would undermine the trust placed in solicitors and the proper conduct of non-contentious business.
3. The release of approximately £2.2 million contrary to the undertaking was a gross breach involving a very substantial sum. Unless wholly exceptional or extraordinary circumstances existed, that breach alone was sufficient to justify striking the claimant from the Roll.
4. The claimant’s reliance on being deceived by his client did not provide a defence or mitigation capable of avoiding the sanction. The Tribunal was also entitled to regard the circumstances as aggravating and to impose a deterrent sentence, particularly given the claimant’s position as a sole practitioner and his failure to comply with professional rules.
5. The recovery of all funds, admission of the charges, ill health, family circumstances and financial losses were substantial personal mitigating factors. They could not mitigate a penalty made inevitable by the gravity of the professional breaches.

The claimant was ordered to pay the Law Society’s agreed costs of £10,000.

• Solicitors’ Disciplinary Tribunal: On 5 July 2007, found the claimant guilty of conduct unbefitting a solicitor for failing to comply with professional undertakings and ordered that he be struck off the Roll.
• High Court (Administrative Court): Dismissed the statutory appeal against the sanction and ordered payment of £10,000 costs.