Manchester Messenger June 2017

Regulation 7
Regulatory Affairs Committee Update
I can’t quite believe that we
are in the 6th month of the
year already! The last month
has been dominated by the
start of the high profile SDT
case involving the firm of
Leigh Day, their partners
and a solicitor in the firm
and of course the worldwide
cyber attack which in
the UK has had a massive
impact on the NHS. If there
is any good to come out of
this, it is that hopefully
everyone will now realise (f
they didn’t already) how
easy a cyber attack can happen
and ensure that they
have the most up to date
protections in place and
that all staff remain alert to
the possibility of viruses in
attachments to emails.
Starting with the theme of
data protection, a senior
barrister (who has remained
unidentified) has been fined
£1,000 by the ICO for failing
to keep clients’ sensitive
personal information protected.
The barrister’s husband updated
software on their
home computer which
meant that the personal
and sensitive information of
250 clients were uploaded
to the internet. Approximately
725 documents
(which were not encrypted)
were temporarily uploaded
and able to be accessed by
an internet search engine.
Whilst the files were quickly
removed from the online directory,
Steve Eckersley,
head of enforcement at the
ICO said that the barrister
had ‘overlooked her responsibility
to protect her clients’
confidential and highly sensitive
information’.
The ICO fine comes at the
same time as the Bar Standards
Board (BSB) has issued
a £750 fine to
Chester-based barrister
Maria Masselis of Linenhall
Chambers for a failure to
keep client matters confidential.
Masselis had disposed of
client files in household refuse
bags which had been
left outside a property for
collection by the council.
The council reviewed the
documents and were able
to trace the contents back
to Masseslis before referring
the matter to the BSB. A
spokesperson said that the
fine should serve ‘as a warning’
to ensure that confidential
information is kept and
also disposed of in an appropriate
manner.
Cold calling
A record fine has been im-
posed by the ICO on a
claims management company
for making 100m nuisance
calls. Keurboom
Communications Ltd made
calls over an 18-month period,
which related to a
wide range of subjects but
mainly road traffic accident
claims and PPI compensation.
The ICO is looking to
strengthen its powers when
the government implements
its plan to allow the
regulator to fine the company
directors behind nuisance
call firms. This aims to
stop them avoiding fines by
putting their company into
liquidation which is what
Keurboom has done. The
ICO confirmed that in
2016/17, it issued 23 companies
a total of £1.9m for
nuisance marketing, its
busiest year to date.
SDT decisions
In SDT news, a solicitor,
Richard Sedgley, a sole
practitioner
from
Bournemouth, has been
struck off by the SDT after
admitting to borrowing
over £1.2 million from the
client account in order to
fund a gambling addiction.
Sedgley, who has been a solicitor
for 38 years, made 59
transfers from the client account
over a two month period
before paying the
money back through his
winnings in June 2016. He
insisted that he had never
intended to permanently
misappropriate the funds.
It was heard by the tribunal
that Sedgley was in a
‘kamikaze’ state of mind following
the bereavements
of both a colleague and a
close personal friend. Sedgley
admitted that others in
the profession would see
his actions as ‘horrendous’
and, given his state of mind
at the time, had not appreciated
that his actions
would be construed as dishonest.
The tribunal nevertheless
found that Sedgley’s actions
were ‘planned’ and, although
out of character,
stated that they were
‘forced to the irresistible
conclusion that in making
such a large number of
transfers…[he] was dishonest
by the ordinary standards
of reasonable and
honest people’.
The SDT has also struck off a
solicitor of 17 years for failing
to advise the SRA that
he had been made bankrupt.
Alan Birkbeck of
Healey Kenyon McAteer,
Liverpool, also borrowed
money from an elderly and
vulnerable client and misinformed
police about representing
a client.
Birkbeck was made bankrupt
in January 2015 and
failed to advise either the
SRA or Healey Kenyon
McAteer of his financial situation.
The tribunal heard
how Birkbeck had previously
been made bankrupt
in 2004 and, as such, should
have been fully aware of
the process and the requirement
to advise the
SRA. Furthermore, Birkbeck
had held himself out as employed
during his suspension
and had misled police
in order to gain access to
potential clients being held
in custody.
In April 2015 Birkbeck became
the appointed solicitor
for an elderly and
‘vulnerable’ client, from
whom he borrowed over
£8,000 over a two month
period, which he failed to
pay back.
Birkbeck said that his failure
to inform the SRA was
an ‘oversight’ and cited difficult
personal circumstances
by way of
mitigation. However, the
tribunal found that his actions
were ‘deliberate, repeated
and continued over
a long period of time’ and
ordered him to be struck
off and to pay £3,453 in
costs.
High Court Appeals
Two very interesting Appeal
judgments in respect
of decisions handed down
by SDT appeared recently.
In Solicitors Regulation Authority
v Wingate & Anor
[2016] EWHC 3455 (Admin)
Holman J stated:
“[the SRA] submitted, and I
agree, that dishonesty and
lack of integrity are not the
same. While all dishonesty
involves a lack of integrity,
not all lack of integrity involves
dishonesty. The law
requires a subjective element
to any finding or conclusion
of dishonesty, but
the question whether a
person lacked integrity is
objective.”
In John Michael Mallins v
Solicitors Regulation Authority[2017]
EWHC 835
(Admin) Mostyn J, making
direct reference to the
statement of Holman J
above, stated
“I must respectfully disagree.
If this were right,
then the SRA could sidestep
the requirement of
proving the subjective element
of dishonesty in any
case by the simple expedient
of charging the same
facts as want of integrity. It
can be seen from the
charges set out above that
in this case the SRA has
done just that in relation to
charges 1 and 2.”
Leave to Appeal has been
granted in both cases, there
appears to be good ground
for consolidating the cases,
at least as far as any discussion
about whether or not
integrity and dishonesty are
the same thing. If it is held
that integrity and dishonesty
are the same thing
then this would appear to
open the door to a raft of
appeals in cases where a
lack of integrity was found
but the subjective/objective
Twinsectra test was not
applied.
Talking of SDT and the SRA
Any post Wingate &
Evans/Mallins raft of Appeals
is only likely to add to
the backlog at SDT and put
further pressure on the already
strained relationship
between the SDT and SRA.
There are still a number of
weeks left to go in the Leigh
Day hearing. Does Patricia
Robertson QC have any
more bunnies to pull out of
the disclosure hat in relation
to what various parts of
government and the SRA
were saying to each other
during the period in which
the SRA was investigating
Leigh Day?!
Training
And finally, the SRA has announced
that no LPC or
training contract will be required
under its plans to
revolutionise the training
requirements for solicitors.
The aim is to introduce
greater flexibility, increase
the range and choice of
legal training and is, according
to the SRA, likely to be
cheaper. It won’t be introduced
until 2020 but will involve
four elements
including a degree(or
equivalent), passing the 2
stages of the Solicitors
Qualifying Examination
(SQE), completing qualifying
legal training for at least
2 years and be of satisfactory
character and suitability.
That’s all from me for this
month. I look forward to
seeing many of you at the
Legal & Clerical Outfitters Since 1789
MLS Regulatory Conference
on 14 June. We have a great
line-up so if you haven’t
registered already, its not
too late to do so!
Michelle Garlick
Chair
Manchester Law Society
Regulatory Affairs
Committee
Weightmans LLP
J. WIPPELL & CO LTD
Providing a Specialist Service for
Members of the
Manchester Bar
Wippell’s Manchester branch stock a wide range of
legal wear including gowns, shirts, waistcoats, striped
trousers, lay and wing collars, studs and legal falls.
To order call us now on
0161 834 7967
All major debit and credit cards accepted.
Manchester Branch
9-21 Princess Street M2 4DN · Email: info@wippell.com
Opening Times:
Monday-Friday: 9am-5pm · Saturday: 10am-5pm · Sunday: Closed
www.wippell.com
Like us on Facebook.