By Gabriel Princewill-
A solicitor has been ordered to make a cost payment if £11,000 for a case brought against him, despite the Solicitors Disciplinary Tribunal findings that the allegations brought by the SRA to be unproven.
Although the primary allegation of dishonesty was found to be unproven, the solicitor was found to have been misleading during three separate email communications to his client; a finding that potentially blurs the distinction between misleading and dishonest conduct .
AD: Capeesh Restaurant
The Tribunal noted that elements of the communication from Counsel on 21 January 2019 were ambiguous and unclear. The anomalies included discrepancies in the figures stated, references to the third defendant’s involvement in the proceedings and questions about whether Counsel had been instructed to represent the third defendant at all which caused the Respondent confusion.
David Mark Turner, formerly a partner at Kitson Boyce and now practicing with Nexa Law, found himself at the centre of a formal complaint brought by the Solicitors Regulation Authority. The SRA accused the solicitor of professional misconduct, specifically alleging he dishonestly misled a small building firm, identified only as Client A.
This accusation stemmed from Mr Turner’s failure to inform the client of the genuine outcome of a summary judgment hearing that had gone against them in January . Following the adverse hearing, a note from the instructed counsel informed Mr Turner directly: “the hearing went against the clients today.”
AD: Oysterian Sea Food Restaurant And Bar
The Solicitors Disciplinary Tribunal said ”The allegations against the Respondent centred around communications sent by the Respondent to Client A after that hearing. The Applicant’s case was that despite the Respondent being aware of the outcome of the hearing, he provided misleading information to Client A by failing to inform them of the true outcome. It was also alleged that the Respondent acted dishonestly”.
Mr Turner subsequently told the client in email communication that the judge “did not give much away” and stressed that “It is difficult to make the call either way at this point.” Mr Turner later self-reported the incident to the regulator, acknowledging he was unhappy with his phraseology, describing the statement as “foolish, clumsy and a misstatement.”
Another email sent on 22 January 2019 stated: “The judge was not particularly vocal, basically kept silent and heard the arguments. It is difficult to make the call either way
at this point.”
Again, this was found to be misleading based on the contents of the email that the Respondent received from Counsel on the previous day. A third email dated the 4th of March 2019 read: “Until I do see a copy of that order, I must assume (as you say) that we are awaiting a decision on the main event.” This was also considered misleading. While the Respondent did not accept this characterisation,
the Tribunal found that, objectively, this statement misrepresented the state of the
proceedings.
The Solicitors Disciplinary Tribunal, the independent body that hears and determines cases relating to breaches of professional conduct, ultimately found Mr Turner’s communication with Client A was indeed misleading based on counsel’s definitive note.
Nevertheless, the tribunal ultimately determined the solicitor had not acted dishonestly, using a benchmark test which they said made it impossible to prove dishonesty. They cited that elements of the communication from counsel “were ambiguous and unclear,” and Mr Turner honestly believed he needed the judge’s written judgment before providing firm, concrete advice to his client.
In order to prove dishonesty, it is necessary to show a deliberate act or omission designed to be improper .
The SDT ultimately awarded the regulator , ruling the SRA misconduct case costs were justified because the case itself was “properly brought.” Its decision is premised on the ‘chilling effect’ case law which stipulates that cases properly brought by the SRA must be covered by the respondent notwithstanding an eventual negative finding following a Tribunal investigation.
The final judgment on the SRA misconduct case costs confirmed the tribunal had made findings criticising the solicitor, who accepted some of the identified shortcomings. The tribunal stated: “The applicant had been required to bring its case having been fixed with information available at the time of its application and it was therefore appropriate for the tribunal to award costs in its favour.”
This rationale emphasizes that the SRA misconduct case costs are recoverable when the regulator had sufficient initial information to reasonably believe misconduct occurred, regardless of the final outcome. The SRA acts as the prosecutor of professional standards, and the Solicitors Disciplinary Tribunal operates independently, assessing evidence against the stringent legal definition of misconduct.
An SRA Spokesperson declined to comment on the case.
AD: Heritage And Restaurant Lounge Bar
