Lorrell v Solicitors Regulation Authority

Professional disciplinary tribunals are expert bodies and appellate courts must accord substantial respect to their decisions. Nevertheless, the High Court may intervene where the sanction is clearly inappropriate or rests on a material error of fact or law.

Lack of integrity does not automatically justify striking a solicitor off the roll. Strike-off in the absence of dishonesty requires misconduct of the highest level and a very serious departure from the standards of integrity, probity and trustworthiness. Where a solicitor acts for clients with conflicting interests, merely advising one client to obtain independent advice may be inadequate. If the solicitor proceeds, the client must obtain genuinely independent representation.

Mr Mark Lorrell appealed against a decision of the Solicitors Disciplinary Tribunal ordering that he be struck off and pay costs of £35,700. The Tribunal found that he had acted for Shoprite Limited in relation to a loan to Ms Clutterbuck, while already acting for Ms Clutterbuck in related litigation and while having an own-interest conflict.

The appeal challenged the findings of misconduct, the finding of lack of integrity, and the sanction. The appeal was also lodged 21 days out of time. The central issues were whether the Tribunal had acted irrationally or erred in interpreting the retainer and loan agreement, and whether striking off was justified.

1. Extension of time. The 21-day delay was explained by the serious illness of the appellant’s father. There was no prejudice to the respondent, and an extension was granted in the interests of justice.
2. Findings of breach. The Tribunal was entitled to find that advice on funding formed part of the appellant’s retainer. A solicitor cannot avoid duties owed to an existing client by describing the transaction as outside the retainer, particularly where the solicitor chooses to act for another client and has an own-interest conflict. In the circumstances, merely advising Ms Clutterbuck to obtain independent advice was inadequate. The appellant should not have proceeded without insisting and ensuring, if necessary at his own expense, that she obtained independent legal advice. The challenges to the findings of breach and lack of integrity were dismissed.
3. Appellate approach to sanction. An appellate court must give considerable weight to an expert disciplinary tribunal. It may nevertheless interfere where, after according that respect, the sanction is clearly inappropriate or the decision rests on a material error. The principles in Council for the Regulation of Healthcare Professionals v General Medical Council [2005] 1 WLR 717, Newfield v Law Society [2005] EWHC 765 (Admin), and Law Society v Salisbury [2009] 1 WLR 1286 were considered.
4. Sanction. The Tribunal had proceeded on an erroneous or insufficiently reasoned assumption about the date of the loan agreement and the harm caused. Lack of integrity is serious, but it does not inexorably require strike-off. Applying the SDT Guidance Note for Sanctions, the misconduct was not at the highest level and no reasonable tribunal could have concluded that strike-off was necessary. The appeal against sanction was allowed.
5. The striking-off order was replaced by suspension from practice for two years, taking account of the period already spent in a position equivalent to suspension. The Tribunal’s costs order remained in force.

• High Court (Administrative Court): the appeal against the findings of breach was dismissed, but the appeal against sanction was allowed. The striking-off order was replaced by a two-year suspension. The costs order remained.
• Solicitors Disciplinary Tribunal: ordered that the appellant be struck off and pay costs of £35,700.