On the 21 February 2024, in a hearing widely reported in the legal press, the Solicitors Disciplinary Tribunal ordered that solicitor Matthew Nester should be struck off the roll for recording administrative (non-billable) time against client files when no such work had been carried out. The matter had been reported to the SRA by his employer when compliance staff identified 5 units (30 minutes) of time recorded against a single file for a quarterly file review which Mr Nester had no responsibility for carrying out, with further examples of inaccurate time recording identified following an investigation. Mr Nester explained that due to the circumstances of Covid lockdown and having to work from home in less than ideal conditions, he had not managed to record the required number of working hours on the system and added the time units intending to carry out the reviews later in his own time. The Tribunal in fact accepted this, as well as the fact that no direct harm had been caused to clients or to the firm, but nonetheless determined that “ordinary and reasonable people would consider that a solicitor who fabricated time on a file, in order to make his employer believe that he had done more work than he actually had, was dishonest”.
Whilst it should not come as a surprise to the legal profession that dishonesty is likely to result in serious regulatory consequences, it has raised some eyebrows that the mis-recording of time – non-chargeable time, at that – has culminated in the ultimate sanction. There can be few fee-earners who could have absolute confidence in their ability to accurately account for all their work time and many in the profession will feel a stab of sympathy for a busy fee-earner, working in difficult circumstances, who appears to have succumbed to the temptation to indulge in creative accounting in order to make it look like he had been putting in the expected hours. The decision of the SRA to pursue the case, and the decision of the Tribunal to strike the person off the roll, reflects the uncompromising position established by the 1994 Court of Appeal case Bolton v The Law Society, often quoted by the Tribunal: “It is essential that solicitors can be trusted to the ends of the earth”. The case sets a standard of conduct for solicitors which is not just demanding, but significantly higher than that imposed on most other trusted professionals.
Cases like this one also present challenges to the affected firms. While the genuinely accidental mis-recording of time is unlikely to require the submission of a regulatory report, in the context of Bolton the slightest whiff of dishonesty from a regulated person will almost certainly be sufficiently serious to meet the requirement of section 3.9 of the SRA Code of Conduct for Firms that they “…report to the SRA… any facts or matters that [they] reasonably believe are capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them… of which [they] are aware”. The submission of such a report to the SRA will inevitably require a degree of potentially uncomfortable reflection by the firm – not only what has happened, but why did it happen; what might the firm have done differently to mitigate the risk; and perhaps most uncomfortably, has the firm itself been encouraging working practices which increased the risk of a regulatory breach? While there is no suggestion of such issues in this recent case, it is not difficult to imagine how extreme pressure to meet billing targets, volume of work and lack of support might lead to fee-earners making bad decisions about recording chargeable time. With workplace culture now firmly embedded in the SRA Codes of Conduct and strategy, you can expect the SRA to ask direct questions about cultural issues which might have contributed to a breach of the standards and regulations, and you can expect any genuine bad apples to point at the barrel in an attempt to excuse their behaviour.
It’s not just about the regulator. In September 2023, a senior partner at Pinsent Masons died, apparently by her own hand, following an intense period of working 18-hour days to deliver a major commercial transaction. Alcohol and an ongoing mental health crisis appear to have played a role in her death. How much she billed on the commercial deal, and whether it was worth the cost, are questions currently being asked by many in the profession.
Solicitors are officers of the court; they are engaged by people across society, for a healthy fee, to represent and support them at critical moments of their lives, whether those be court hearings, family deaths, divorces or property purchases. It is right and proper that they should be held to high standards of honesty and integrity. At the same time, solicitors are themselves people with lives, families, personal issues and external pressures to manage. No fee-earner should be under so much pressure to meet billing targets that the high standards of the profession become practicably unattainable; no client is well-served by a solicitor who is overworked and under-supported. The time to check in on your people is now. Don’t leave it another minute.