DK v MK (Approved)

Factual and Procedural Background

This opinion concerns an appeal pursuant to section 7(12A)(b) of the Solicitors (Amendment) Act 1960, as amended, permitting an appeal against a Disciplinary Tribunal's finding that a solicitor has not been guilty of misconduct. The appeal differs from a de novo hearing and is limited to reviewing the Tribunal’s decision.

The Appellant, a barrister, initiated a complaint in February 2018 against the Respondent, a solicitor, regarding the non-payment of fees related to numerous cases. The Solicitors' Disciplinary Tribunal found a prima facie case of misconduct on three allegations concerning the Respondent's failure to recover fees, failure to pass on fees, and failure to provide satisfactory explanations. By the time of the hearing, the number of cases in question had reduced from 125 to 93.

In March 2020, the Tribunal delivered its decision, concluding the Respondent was not guilty of misconduct on any allegation. The Appellant appealed this decision to the High Court.

Legal Issues Presented

1. Whether the Tribunal erred in finding that the Respondent was not guilty of professional misconduct in failing to use best endeavours to recover the Appellant’s fees (Allegation 1).
2. Whether the Tribunal erred in finding that the Respondent was not guilty of professional misconduct in failing to pass on portions of fees due to the Appellant (Allegation 2).
3. Whether the Tribunal erred in finding that the Respondent was not guilty of professional misconduct in failing to provide a satisfactory explanation regarding efforts to recover fees (Allegation 3).
4. Whether the High Court should confirm, rescind, or vary the Tribunal’s findings and the appropriate sanction, if any.

Arguments of the Parties

Appellant's Arguments

• The Respondent failed to issue fee notes to clients for the majority of the cases, contrary to the Law Society’s Practice Note obligations.
• The Tribunal incorrectly accepted delay in submitting fee notes as justification for non-presentation, despite some fee notes being submitted timely.
• The Tribunal erred in accepting an incorrect date for the breakdown of the parties’ relationship, affecting the assessment of fee note expectations.
• The Respondent failed to pass on fees received in several cases, contradicting the Practice Note.
• The Respondent did not satisfactorily answer queries regarding efforts to recover fees.
• The Tribunal’s findings were vitiated by serious and significant errors warranting rescission.

Respondent's Arguments

• The Tribunal’s findings were correct and should not be disturbed as no error of law or unsustainable fact-finding occurred.
• The Appellant sought to isolate discrete elements of the decision rather than considering the broader context.
• The Tribunal weighed conflicting evidence carefully and chose not to find misconduct.
• The familial relationship and strained relations during the relevant period were relevant to the conduct and delay in issuing fee notes.
• The delay in issuing fee notes contributed significantly to the non-payment issues.
• The Respondent engaged with the Appellant’s concerns and sought to answer queries as best he could given limited resources.
• The High Court should not reassess credibility findings made by the Tribunal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by acknowledging the high threshold for overturning the Tribunal’s decision, emphasizing deference to specialist tribunals but noting the supervisory jurisdiction of the High Court over solicitors.

Regarding Allegation 1, the Court found multiple serious and significant errors in the Tribunal’s approach. The Tribunal had accepted delay in issuing fee notes and an assumed improbability of recovery as justifications for the Respondent’s wholesale failure to send fee notes to clients. The Court held that the Law Society’s Guide and Practice Note impose a clear obligation on solicitors to use their best endeavours to recover counsel’s fees, including sending fee notes and following up with clients, regardless of the likelihood of recovery. The Tribunal failed to analyze the delay’s precise impact or consider whether the Respondent informed the Appellant of the practice of delayed fee notes. The Tribunal’s reliance on irrelevant factors, such as the Appellant’s motivation and treatment compared to others, was also identified as an error of law.

The Court concluded that the factual breach was proven: the Respondent failed to use best endeavours to recover fees by not sending fee notes. This breach, being widespread and enduring, was deemed professional misconduct as it tended to bring the profession into disrepute. The Court rejected the Respondent’s argument that public perception would not be adversely affected, emphasizing the negative impact on counsel, clients, and the profession’s integrity.

In relation to Allegation 2, the Court found the Tribunal’s decision sustainable. Although some fees had not been passed on, the Tribunal considered the amounts involved, disputes over fee levels, and the absence of evidence that money expressly intended for counsel’s fees was withheld. The Tribunal’s findings were not unsustainable or legally erroneous.

For Allegation 3, the Court deferred to the Tribunal’s credibility findings that the Respondent engaged and sought to answer concerns despite limited resources. The Court found no sustainable basis to overturn the Tribunal’s conclusion that the Respondent provided a satisfactory explanation.

Finally, the Court exercised its statutory power to rescind the Tribunal’s finding on Allegation 1 and vary it to find the Respondent guilty of professional misconduct, while confirming the Tribunal’s findings on Allegations 2 and 3. The Court noted the desirability of finality and the absence of necessity for remittal given the nature of the issues and evidence.

Holding and Implications

The Court’s final decision was as follows:

• Allegation 1: The Tribunal’s finding of no misconduct was rescinded and varied to find the Respondent guilty of professional misconduct for failing to use best endeavours to recover the Appellant’s fees.
• Allegations 2 and 3: The Tribunal’s findings of no misconduct were confirmed.

The Court granted the parties an opportunity to make submissions on sanction under the relevant statutory provision. The decision directly affects the parties by establishing professional misconduct on Allegation 1 but does not set new precedent beyond the application of existing Law Society guidance and principles. It underscores the importance of solicitors’ obligations to recover counsel’s fees and clarifies the High Court’s supervisory role in such disciplinary appeals.