Pressure and Stress Print

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 Under Pressure?

There has been a recent flurry of SDT decisions where solicitors with unblemished records have been struck off for dishonesty. The motivation for each instance of dishonesty appears to have been a desire to cover up individual shortcomings or steps not taken on behalf of clients. The following headlines from the Law Society Gazette make for grim reading:

  • “Solicitor, 28, who fabricated court letters is struck off”
  • “Solicitor struck off after overlooking claim”
  • “Solicitor who faked documents for self-preservation struck off”
  • “Solicitor struck off for misleading clients about case progress”
  • “Partner struck off for ‘web of deception’ about case progress”

These cases relate to solicitors of a broad range of experience and qualification. In our view, they serve as a powerful reminder of the need to recognise that all individuals, regardless of their experience or seniority, require additional support when under intense or prolonged periods of high pressure. We will focus on the story behind the final headline, but the messages are the same in respect of each of the examples referred to above.

Solicitors Regulation Authority v Harling

Mr Harling was the Managing Partner of his firm, and he had over 28 years of legal experience. He had been instructed to deal with a boundary dispute between his client and his client's neighbour. Mr Harling was specifically instructed to issue court proceedings against the neighbour. However, he failed to do so because he believed (seemingly genuinely) that the case could be resolved through mediation, and without the need for litigation.

Between January 2012 and April 2013, Mr Harling sent several emails to his client which gave the impression that proceedings had been issued in accordance with his instructions. Throughout that time, his client repeatedly requested details of the date on which the case was to be heard at court. Mr Harling did not alert his client to the truth, and as time went on, his responses became increasingly embellished. The matter finally came to a head in April 2013, when Mr Harling's client telephoned the listing offices at his local county courts, only to be advised that his case had never been listed. Mr Harling was ultimately forced to admit that proceedings had not been issued, and that he had not followed his client's express instructions.

Whilst Mr Harling accepted that he had not followed his instructions, he explained to the SDT his hope that the matter could be resolved without his client facing the inherent risk of litigation and/or the potential costs consequences that may have resulted. Mr Harling argued that boundary disputes were particularly difficult to deal with, and that he had properly considered that litigation was not the most appropriate way to handle the matter. He also attempted to justify his actions on the grounds that an amicable resolution would have assisted his client's ongoing relationship with his neighbour.

Nevertheless, the SDT found that Mr Harling had acted dishonestly over a significant period of time, and that he had embarked on a "sustained and developing deception".  His conduct, not least as a senior solicitor of his standing, was held to be unacceptable and despite having an otherwise untarnished record, his name was struck from the Roll accordingly.

Honesty is Always the Best Policy

It goes almost without saying that a solicitor acting dishonestly will be in breach of his professional rules. Such conduct is clearly never acceptable. Despite the unblemished record that Mr Harling had previously enjoyed, his career as a solicitor was brought to an end as a consequence of his deception.

But why be dishonest? Mr Harling had concluded that he did not feel able to act in accordance with his client’s instructions because to do so would not have been in his client’s interests. However, he should have simply advised his client accordingly. He could have offered to refer the case to a colleague for a fresh perspective, or suggested the instruction of counsel for a second opinion. In extremis, he could have invited his client to instruct a
new firm if he felt that to continue with the claim would be contrary to his client’s best interests.

A "little lie", even if made with the best of intentions, can very quickly turn into a major problem of deception and dishonesty that cannot be undone, and the consequences for the individual and for the reputation of the firm can be shattering. Misleading a client as to the true position will never be viewed favourably by any client, employer, regulatory body or judge.

Where dishonest conduct has given rise to a financial loss and a claim, the dishonest professional may also find that they bear a personal cost, due to the dishonesty exclusions applicable to Professional Indemnity Insurance.

Keep the Client Informed

This case also highlights the importance of keeping clients fully and properly apprised of progress throughout any transaction, even where the necessary advice is likely to be unwelcome. Ensuring that your client is fully informed will help to avoid any argument later on that they would have acted differently had they been advised of the full, or true, position.

The SDT in this case took the view that Mr Harling should have advised his client about the prospects of successfully running the case to trial, rather than concealing the true position in order to avoid litigation. Even if you expect that your client may proceed against the advice that you have given, that is a decision for the client to make. In such circumstances, it is important to ensure that both that advice (including a clear explanation of the risks of acting against the advice) and the client's subsequent decision are properly documented on your file.

This case is an unfortunate reminder of the severity of the problems that can occur where difficult matters and high pressure conditions can lead not just to significant errors of professional judgement (in ignoring a client’s instructions), but a further misjudgement in relation to a decision to ‘cover up’ the true position, an act of dishonesty which quickly spiralled out of control.

Encourage a Culture of Support

Plainly, prevention is better than cure, and this case shows the importance of encouraging a culture of support and transparency at all levels and at all times, so that there are no such errors of judgement in periods of intense pressure or when things go wrong.

The SDT heard and accepted that Mr Harling had been under significant pressure following his appointment as Managing Partner. One of his fellow partners gave evidence explaining that the firm had not realised how hard Mr Harling had been working on cases, as well as in response to his additional responsibilities in running the firm, which also happened to be in financial difficulty. Mr Harling had worked day and night "but did not take time off due to stress, as partners were not allowed to be stressed."

A Costly Problem

Fortunately, we only see ‘cover ups’ by fee earners in rare cases although, sadly, we do see them. However, the broad range of notifications we see are indicative of fee earners in all firms failing to manage the day to day pressures of legal practice. This is often all the more apparent when departments that were down-sized in difficult economic conditions start to become busier as the economic cycle turns.

...The partner concluded the transaction but was under a lot of stress and was not the best at delegating, it seems that the requirement to register the document in time was just overlooked...

... I know I advised the client on this part of their deal but I don’t have any record of this...

... We didn’t send an engagement letter, they just annoy the client, but we weren’t advising on that aspect of the deal ...

... I just don’t know how we overlooked that limitation argument, we were just so focused on other aspects of the claim ...

All of the above examples are based on real claims with actual or potential values of six or seven figures. In addition to losses arising from such claims, there are hidden costs to dealing with claims, not least the time spent managing the client, investigating the matter or liaising with firms instructed in the defence to the claim, all of which could have been time spent on more profitable activities.

To alleviate the risk of claims, firms are encouraged to ensure that members of staff who may be under severe pressure or experiencing heavy workloads are provided with the necessary support, and that all members of staff have an opportunity to raise concerns with supervisors or other senior colleagues in confidence.

A ‘project management’ approach should be adopted on all instructions, ensuring that the work is adequately resourced and budgeted. It is not straightforward to strike the right balance between the client wanting a piece of work done economically, and ensuring that the matter is adequately resourced by your firm. However, in our experience, getting this balance wrong by under-resourcing ultimately transfers considerable financial and reputational risk to the law firm.

A supportive approach by firms to fee earners’ genuine concerns as workload pressures evolve reduces the likelihood of problems being hidden, and of course, the earlier that problems are identified, the easier and cheaper they can be to resolve.

Warning Signs

It is worth remembering that not all warning signs of pressure turning into stress are immediately obvious. However, they may include:

  • a change in personality,
  • presentee-ism,
  • not taking holidays,
  • not delegating work where appropriate.

We Are Here to Help

Since the inception of the Libra Scheme in 2000, we have seen issues of all types arise. They are often not as bad as they may first seem to the fee earners concerned. Frequently an early warning of a problem means that a solution is available that would otherwise be lost with delay, so fee earners should be encouraged to notify concerns internally, and if necessary, they should be brought to our attention at the earliest possibility.

Should you need to inform a client of an issue that may constitute an admission of liability, or if you consider that you may need to make a client an offer in relation to any possible financial loss, all fee earners should be aware that our prior written consent is first required in accordance with the Policy Wording.

We appreciate that a swift response is often required to preserve the client relationship, and in such instances we are usually able to agree or approve an appropriate form of words very promptly, so please let us know if ever we can be of assistance.

Since Libra Managers act as agents for professional indemnity underwriters, our comments are necessarily given from a professional liability and loss prevention perspective only.  You may well consider it appropriate to obtain further views and advice on this subject either internally or externally.