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Tuesday, 3 November 2015

Concerning three worrying cases of fake litigation

I send an annual email to all lawyers in my firm. It goes out just as we begin the process of renewing our Professional Indemnity Insurance. The wording has barely changed in over 20 years – it started life as a paper memo! This is the familiar email that invites them to report to me any circumstances that might give rise to a claim. It always has the same ending –

‘It is not the end of the world if you make a mistake. But it is a different matter altogether if you don’t tell me!’

I have always encouraged lawyers to speak to me or somebody senior if they are worrying about a file. I do it myself. It is all part of learning to work as a busy lawyer and also to sleep at night. All of which makes some recent stories both alarming and sad. These involve solicitors who have gone to staggering lengths to try and avoid being found out.

The first concerns Claire Tunstall who was suspended by the SDT earlier this year for fabricating documents in a clinical negligence case. This included medical reports, correspondence and counsel’s advice. She also made a payment to a client from her firm’s office account, pretending that it had come from the other side. The SDT found that she had suffered from a lack of support and supervision from her employers. She seems to have become ill as a result –

It is hard to imagine how someone can get into this position. The stress of maintaining such a fiction is far worse than the stress of getting it off your chest by admitting you have lost control of a case. I actually have great sympathy for her and would like to seen action against her firm who allowed this to happen.

But the plight of Ms Tunstall is overshadowed by two more recent incidents. The first is the case of Mark Davies who conducted fictitious cases for about five years. He fabricated documents, misled clients and even made payments to clients from his own money. Not surprisingly he was struck off last month. Again the question has to be … why? At what point did it become preferable to embark on a pretence that ended his career, rather than seek help.

These have now been followed by third solicitor who has been referred to the SDT.

One such incident would be unfortunate. To have three in the space of a few months is worrying. Why is it that lawyers are so afraid of admitting that something has gone wrong, that they will go to such drastic extremes? What has happened to our profession that nobody can put a foot wrong and if they do they risk their careers and health to pretend that all is well?

I think that we all have a role to play here.

Those of us in senior positions must make it clear that we are here to help and guide and not to judge or criticise. A difficult case never seems to be as bad once it has been shared with someone who isn’t worried about it!

I have no doubt that most of us do this. 

But something is going wrong and we need to do all we can to ensure that careers are not ruined through fear and panic.

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