Maxfield Martin v SRA [2022] EWHC 307 (Admin): Dishonesty finding quashed where a solicitor signed a factually false declaration, in the name of a partner of his firm
MM was a solicitor whose firm had a legal aid contract for mental health work. He needed to be reaccredited by the Law Society. The process required a partner/senior manager of the firm to sign the reaccreditation form and declare that the information was correct to the best of his knowledge, and that he had read the declaration stating that. The partner did not look at the form and it was signed by MM. The declaration MM signed was, then, demonstrably false. An open and shut case you might think on dishonesty and lack of integrity. MM knew it was false and he signed it anyway and presented it to the Law Society.
Not so. Because the partner involved had a habit of allowing his solicitors to sign their own forms in his name. The SRA had actually called as one of its own witnesses another solicitor, Ms Young, who said he did pretty much the same thing with her. She had brought the form to him, he had said “I trust you, put my name to it”. It was found by the Tribunal that in MM’s case he had said something like “get it done”.
Mr Justice Soole found that “get it done” amounted to implied, and probably express, authority from the partner for MM to sign the form. The Tribunal had also found that he had implied authority, but concluded that did not make any difference to the falsity of the statement on the form. They went on to conclude using the Ivey test that reasonable and decent people would consider what MM did was dishonest. Further, it amounted to lack of integrity.
The court disagreed. Going by way of the legal concept of agency, and actual authority as a legal relationship, Solle J concluded that MM had authority to sign the form on the part of the partner. So there was no problem as between MM and the partner. Nevertheless, what mattered for the Law Society was whether the declaration was true, and it plainly was not.
But while the partner’s consent did not affect the falsity of the statement on the form, it did affect any judgment on dishonesty. The Tribunal had given “no real weight” to the consent. The Judge was also not impressed at the Tribunal’s attempt to find a distinction between Ms Young’s case and MM’s on the grounds that she had at least been in the room with him when he signed it and had given him a chance to review it. The findings of dishonesty and lack of integrity were both quashed.
This case illustrates that the sort of mental wrestling that used to arise in applying the Ghosh dishonesty test (did the defendant know that what they did would be regarded as dishonest by reasonable and honest people) still arises with the more objective Ivey test. The simple way of looking at MM’s case might be to say “he made a false declaration on a form, reasonable and honest people would regard that as dishonest, but as there was no motive to defraud or similar it is a minor piece of dishonesty”. The other way to say it is if he had permission to do it, and there was no intention to defraud or similar, and reasonable and honest people would not regard it as dishonest at all.
Ironically, a borderline case like this is one where Ghosh might have captured better the subtle moral dimensions. A Ghosh defence would allow the Tribunal to say that the act was dishonest by the standards of reasonable and honest people, but it could then credibly conclude that MM did not realise that, so he should not attract the taint of dishonesty.
Soole J did seem a little nervous at the implications of his own findings. At paragraph 99 of his judgment he emphasises that the decision is based on the “very particular” fact of this case and “the imperative obligation for solicitors to ensure that forms such as this are completed with the utmost care and accuracy is undiminished”.
Perhaps the best advice to solicitors in this situation who do not want to face the uncertainties of a Tribunal or the High Court is: make them read it, make them sign it.
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