What The Divisional Court's Decision In SRA v Sovani James Tells Us About Wellbeing For Lawyers: Some Reasons For Optimism

This week the Administrative Court handed down judgment in three appeals by the Solicitors Regulation Authority: SRA v Sovani James, SRA v Esteddar MacGregor, SRA v Peter Naylor [2018] EWHC 3058 (Admin). Reactions to the judgment by lawyers have been critical, regarding it as a harsh decision which missed an opportunity to reflect developing attitudes to wellbeing in the workplace.

Rather than focusing on the regulatory/disciplinary aspects of the cases, I would like to offer a different perspective, and to suggest that it is possible to derive considerable optimism from the judgment about progress in wellbeing for lawyers.

In each of the three cases the Solicitors Disciplinary Tribunal had found that a solicitor had been dishonest, such as by misleading the client or the firm, or in assisting in a fraud and its subsequent concealment. However, it held that the mental health of the solicitor, related to work pressures, was an exceptional circumstance which justified a lesser sanction than striking off.

In the case of Ms James, the SDT found that the firm was a challenging place to work. The senior management sought to pass pressure on to junior staff such as Ms James, with monthly publication of league tables to create competition between fee-earners. The SDT was particularly critical of an email from a senior manager complaining about a shortfall of Ms James' billed hours as against her target and a letter from the senior partner to Ms James in requiring her to work evenings, weekends and bank holidays to make up chargeable hours. The SDT found this was a "notable example of bad, ineffective and inappropriate management."

The SRA appealed each of these decisions of the SDT, arguing that striking off was the appropriate sanction in each case. The Administrative Court of Flaux LJ and Jeremy Baker J agreed.

What did for each of the solicitors was that:

the SDT found that the solicitor had acted dishonestly notwithstanding their workplace pressures and mental health issues: his/her "mindset" was one of dishonesty; as Flaux LJ noted, the SDT made a specific finding that, despite any mental health issues, each of them knew the difference between honesty and dishonesty and knew that what he or she was doing was dishonest. Dishonesty involves conscious and deliberate wrongdoing; the court concluded that on the authorities, "exceptional circumstances" focused on the extent and nature of the dishonesty, rather than on matters of personal mitigation...