“(3) The appeal court will allow an appeal where the decision of the lower court was— (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
“67. ..the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
“The adverb “plainly” does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”
“71. The first consideration is that this is a decision of a specialist Tribunal, particularly equipped to appraise what is to be required, in the particular circumstances, of a solicitor by way of professional conduct. The appellate (judicial) court will be cautious in interfering with such an appraisal. The principle is well established on the authorities….”
“… the Solicitors Disciplinary Tribunal must also take into account the rights of the solicitor under articles 6 and 8 of the Convention. It is now an overstatement to say that “a very strong case” is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere..”
“…. When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-under by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
“In professional codes of conduct, the term “integrity” is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members.... The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards.”
“Integrity connotes adherence to the ethical standards of one's own profession. That involves more than mere honesty. To take one example, a solicitor conducting negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse.”
“...(iv) Making improper payments out of the client account…. (v) Allowing the firm to become involved in conveyancing transactions which bear the hallmarks of mortgage fraud…”
“Obviously, neither courts nor professional tribunals must set unrealistically high standards…. The duty of integrity does not require professional people to be paragons of virtue.”
“…looking at the authorities in the round, ..the following…points of principle can be identified: (a) Save in exceptional circumstances, a finding of dishonesty will lead to the solicitor being struck off the roll…. That is the normal and necessary penalty in cases of dishonesty... (b) There will be a small residual category where striking off will the a disproportionate sentence in all the circumstances, see Salisbury. (c) In deciding whether or not a particular case falls into that category, relevant factors will include the nature, scope and extent of the dishonesty itself; whether it was momentary, .. or other a lengthy period of time…; whether it was a benefit to the solicitor.., and whether it had an adverse effect on others. [14] …. It seems to me that it is the nature, scope and extent of the dishonesty itself that matters. Questions as to financial loss may however be relevant in considering whether a particular case falls within or outside the exceptional category to which the authorities refer.”
“Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty……If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case…”
“Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again…. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. … The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.”
“(a) properly required for a payment to or on behalf of the client (or otherperson on whose behalf the money is being held);… (f) withdrawn on the client’s instructions, provided the instructions are forthe client’s convenience and are given in writing, or are given by othermeans and confirmed by you to the client in writing;”
“given the inconsistencies about the identification of both clients and given the instructions to make the payments to unrelated third parties was concerning in terms of the timing of the request, the urgency, the relative informality, the fact the payment did not relate in any way to the conveyancing transaction and the lack of any good reason at all why the payment should be made to the third party rather than to the purported clients, the payments could not be said to be “properly required””
“Given that both purchases had failed, title did not transfer, and the solicitors acting for the intended purchasers were obliged to take steps to recover the purchase monies paid to (and out of) the Firm, the Tribunal considered that this showed a fanciful unwillingness or inability to objectively assess the evidence.”
“The consequences for the intended purchasers who paid the money to the Firm and did not acquire title to the properties was very significant. Conveyancing requires complete probity and propriety from the solicitors involved in what are, for most people, very significant financial transactions. The public would rightly expect appropriate care to be exercised by solicitors in such transactions and that only proper payments would be made. The Tribunal considered [Mr Ete’s] failures to follow up on the red flags summarised above to be improper. He did not react during the life of the transactions as the red flags emerged. He did not do enough to question, and confirm in writing, the instructions to make payments to unrelated third parties which on their face, and even more so in this context, should have aroused suspicion. When the representatives of the intended buyers raised questions over the identities of the First Respondent’s clients, he should have done more to investigate and assist them.”
“..was cavalier with regards to safeguarding client funds and acting on potential red flags”
“..his conscious carelessness and failure to respond appropriately with further enquiries, following what were concerning questions as to the identity of his clients, and the making of improper payments to unrelated third parties in those circumstances, amounted to a failure to meet theminimum ethical standards of the profession.”
“any solicitor when presented with such hallmarks of fraud would take steps to protect the money involved and investigate the issues which had arisen”
“Having been referred to the relevant Land Registry office copy entries, showing ownership of the relevant properties, it appeared to the Tribunal to be more likely than not that these documents had been doctored. Thedocuments were immediately implausible and unconvincing on their face.”
“You must not provide banking facilities through a client account. Payments into, and transfers or withdrawals from, a client account must be in respect of instructions relating to an underlying transaction (and the funds arising therefrom) or to a service forming part of your normal regulated activities.”
“considered the operation and protection of the client account to be the bedrock of legal practice. Even outwith issues with the client identities which were the focus of the previous allegations, the Tribunal considered that in such circumstances, it was clear that the money should be returned to the client for them to make any unrelated payment themselves.”
“He had been introduced to Person A and had seen his name on the Law Society’s website but this was the extent of the information he had. Conveyancing transactions inevitably involve the transfers of large sums of money. In such a context, the need for a system of control and supervision was heightened. [Mr Ete] had not taken any steps to check the experience or competence of Person A. For someone who had the authority to run conveyancing files with autonomy, subject only to a perfunctory check by [Mr Ete] when payment was sought, the system of control and supervision for Person A was completely inadequate.”
“However, by [his] own evidence, conveyancing was not his usual area of practice. The Tribunal considered that a perfunctory glance at the paperwork at the stage when Person A requested that payments be made was inadequate. [Mr Ete] had acknowledged that he did not exercise more extensive supervision or assume any greater involvement in the transaction.”
“..the failure to carry out meaningful checks on Person A’s work and experience amounted to manifest incompetence ..displaying such manifest incompetence in the running of his firms in the context of an individual given a free rein to conduct legal work in which significant sums of client and purchaser money was inevitably involved, amounted to a failure to behave in a way that maintained the trust the public places in the [solicitor] and the provision of legal services.”
“The emails stated plainly that the transaction may be fraudulent, that the intended purchaser had lost£350,000 and had not received good title. [Mr Ete] was told bluntly that his client identification measures were considered inadequate. On the day of this communication [Mr Ete] tried three times to recall the payment to the third party… The Tribunal considered that this indicated that the [Mr Ete] was well aware that there were grounds for concern”
“As to the state of [Mr Ete’s] knowledge, the Tribunal had found that [he] was well aware that he should have reported these issues to his insurer but that he elected not to do so. He may have believed that no successful claim would result, but he was aware that there was a major issue with the relevant transaction; that the purchaser’s solicitor considered the transaction to be fraudulent and considered the client identification steps taken by [him] to have been inadequate. … Once the above findings as to his knowledge and belief as to the facts had been made, the Tribunal found on the balance of probabilities that ordinary decent people would regard [Mr Ete’s] conduct as dishonest. He had completed the form untruthfully. The aggravating allegation of dishonesty was accordingly proved to the requisite standard.”
“professional indemnity insurance covers the practice against negligence and did not cover the Firm against an investigation by the [SRA] or the Police”
“…the Tribunal found [Mr Ete’s] conduct in respect of which dishonesty had been found was to improve the Firm’s position particularly by securing continued indemnity insurance cover and to give himself time to resolve the issues which had arisen on the conveyancing matters. More broadly, at the time [Mr Ete] was seeking to expand the practice into new areas of work. The Tribunal did not consider that [Mr Ete] had intended for the compliance measures and systems to be inadequate, but that he had not made any meaningful nor adequate efforts to ensure that they were fit for purpose. His conduct was not motivated primarily by any personal financial gain. The misconduct could not be described as spontaneous as there were multiple findings and the conduct extended over three months in 2018. He was an unwitting player in the apparent fraud but the compliancesystems that he had established proved wholly inadequate. [Me Ete] had ahigh degree of control over the circumstances of the misconduct despite being taken in himself by those who perpetrated the fraud. He had conduct of two of the conveyancing matters and was the Principal of both firms. He had sole control of the Firm’s bank accounts. The First Respondent was a highly experienced solicitor with over twenty years’ experience, albeit his experience of conveyancing was limited.”
“There had been a direct and significant impact on those whose identities [Mr Ete’s] purported clients had impersonated and used. In one case witness evidence had been provided from the owner of the relevant property that efforts had been made by the purchaser to have her son evicted from her property. The buyers had lost money when the purchase monies had been paid away. The person whose identity Person A had used had been personally and professionally inconvenienced. Whilst [Mr Ete] had not been the instigator of these frauds it was his compliance failures which had allowed this harm to materialise. The reputational harm to the profession of a solicitor acting dishonestly when obtaining indemnity insurance, making improper payments and acting in transactions with the hallmarks of fraud was very serious and something which should have been obvious to [Mr Ete].”
“The nature of the dishonesty involved misleading his insurer as part of a renewal process. It was a single episode of limited duration, in that it was one misleading answer on one form. However, it could not be described as a “moment of madness” as the completion and submission of such a form was not a one-off instantaneous action but an action with several constituent parts. Whilst there was no direct financial benefit to [Mr Ete], there was some benefit to him and his firm in that it eased the process of renewal of the relevant insurance cover. Such insurance was for the benefit of a firm’s clients and the provision of misleading information in a process which required the utmost good faith created the risk that the cover would be vitiated. The multiple findings of conduct lacking integrity showed a pattern of behaviour in which compliance systems received a significant and repeated lack of attention.”
“The factors raised in mitigation, and the pressures on [Mr Ete], may well have been significant but they were not exceptional and did not relate to the dishonesty found proved..… pressure, stress and depression (even if evidenced which was not the case here) cannot justify dishonesty by a solicitor.”