Lawless lawyers: Is dishonesty really worse than a sex offence?

Recent decisions from the professional bodies governing both solicitors and barristers have seen a uncomfortable trend: some of those committing sex offences are allowed on carry on practising as lawyers, whilst almost anyone guilty of dishonesty continues to be struck off with little hope of return.

Solicitors Disciplinary Tribunal (SDT)

For any solicitor found to have acted dishonestly, it is a cliché to say that being struck off is all but inevitable. The guideline judgment of Bolton v The Law Society [1994] 1 WLR 512 continues to echo through each SDT judgement. The fundamental purpose of this is “to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission.”

One example is the alarming case of Sovani James, a junior solicitor, whilst working in an overloaded and and toxic working environment whilst battling a mild depressive disorder and anxiety, resorted to making nine misleading statements and backdating letters to appear as though she had worked on cases when she had not. The SDT were highly critical of her employers’ working practices, and suspended her from Practice. However, following an appeal by the Solicitors Regulation Authority in 2018, the High Court ultimately struck off Ms James, Mr Justice Flaux that, “this was not isolated dishonesty or a moment of madness but repeated dishonesty over a sustained period of time.” (Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin))

An even more extreme example of this doctrine is the case of Emily Scott, a trainee solicitor who actually blew the whistle on her supervising partners, two rogue solicitors who were deliberately overcharging vulnerable clients. Despite what might many would consider a brave report to the SRA, Scott was shown no mercy and was struck off in 2019, along with her supervisors. She remarked of the SRA, "if I hadn’t blown the whistle that company would still be ripping people off. They encourage you to give them information then hang you out to dry. This could potentially prevent others coming forward in the legal world."

Apart from a 'one-off' incident with very substantial mitigation, it seems there is little one can do to mitigate a finding of dishonesty. Perhaps oddly, the same does not seem to apply to solicitors who commit sex offences.

In 2018, Alastair Main, a solicitor formally at global investment manager Shroeders, avoided being stuck off by the SDT despite being convicted of sexual assault, and racially aggravated assault, and then placed on the Sex Offender’s Register for five years. The offence involved calling a young colleague “an Australian slut”, pulling up her skirt, slapping her bottom and pouring a pint of beer over her. The SDT suspended Mr Main for 12 months, ruling that he, “had already been punished by the criminal courts. Protection of the general public was not an ongoing issue. In terms of managing the reputation of the profession, his conducted merited some interference with his ability to practice”.  On appeal, the High Court increased the suspension to four years but refrained from striking Mr Main off (Solicitors Regulation Authority v Main [2018] EWHC 3666 (Admin)).

In 2020 Ravi Khosla, a 41 year old consultant solicitor faced the SDT after having pleaded guilty to sexually assaulting an 18 year old woman at a taxi rank. The young woman explained it was one her first nights out when Mr Khosla, a stranger at the taxi rank, had a short conversation with her then put his hands around her hips, squeezed her bottom hard, pulled her towards him and tried to kiss her. She said she felt dirty and shocked. The SDT, having heard substantial mitigation including a reference from the Chair of the Criminal Bar Association in Mr Khosla's favour, found that he was highly unlikely to repeat his misconduct and that he was a highly respected and competent lawyer. Mr Khosla was neither stuck off nor suspended, but fined £17,500 and ordered to pay £1,900 in costs.

One wonders what the tribunal in Bolton v The Law Society would have made of these decisions: To use their words: do these judgments really “maintain the reputation of solicitors and sustain public confidence in the integrity of the profession”?

Are standards any higher at the Bar?

It seems that decisions at the Bar are fairly similar.

In September 2019, a barrister called Daren Timson-Hunt pleaded guilty in the magistrates' court to one of the first offences of “up-skirting”. Mr Timson-Hunt, who was called to the Bar in 2001, had hidden his phone under his leg whilst travelling on a tube. He used it to take a covert photograph up a female passenger’s skirt. He later following closely behind her up an escalator.

The Bar Tribunals and Adjudication Service deemed it sufficient to suspend Mr Timson-Hunt from practising for six months, and pay costs of £1,200.

In January 2020, a barrister called Sam Clement Brown, called to the Bar in 2004, was also merely suspended for six months by a Bar Disciplinary Tribunal, after the unwanted groping of a Bar student who he supposed to be was mentoring. The Tribunal had found Mr Brown was far from contrite about it, “...He was and is a senior junior barrister practising mainly in criminal law. We recognise that Sam Brown has been under considerable emotional and professional pressure since early July 2017 when these charges were first intimated to him. In certain aspects, particularly his motivation for prolonging two long drinking sessions with the complainant, his evidence was unconvincing. When faced with incontrovertible evidence of her having been very drunk, he refused to accept it. He minimised the alcohol that he said she had consumed.”

Of course, not all of these instances of sexual misconduct / sexual offences were prosecuted, or proved, to a criminal standard. But the same can be said for dishonesty offences - the vast majority of which are never prosecuted in the criminal courts. It seems that typically, the key facts are agreed by all sides in any event.

Indeed, on the recent pattern one might observe that if a an older male lawyer sexually harassed his female junior, even to the point of an assault at work, he stands a fair chance of not being struck off. But, if he persuaded her to back-date some of his letters, then both of them will almost certainly be struck off. Is this pattern not concerning?

Looking at the developing pattern, perhaps it is now time for the lawyers of England and Wales to ask themselves the following:

1. How many sex offenders, either convicted or self-confessed, are still practising as solicitors or barristers in England and Wales?

2. Are today’s solicitors and barristers comfortable that the reputation of their professions encompasses these people?

3. Are the sex offences cited above really less of a professional concern than virtually every single instance of dishonesty, no matter what the circumstances?

If lawyers still aspire to be "trusted to the ends of the earth” then perhaps we ought to start off considering this apparent disparity. 

Since the original publication of this article, the Bar  Standards Board has announced a review of its guidance on sexual misconduct cases.

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