Here is a first line to a hymn:
'Oh, there'll be joy when the work is done'.
But what about putting lawyer time down when the solicitor has not yet done the work? For one solicitor it ended not with joy but with him being struck off the Roll, meaning end of right to practise.
I recount this story with no joy at all, but to show how harsh the regulator's disciplinary tribunal can be when a solicitor, even a junior, has been judged to have acted dishonestly. It ought to be of interest both to those working in the legal services world and to those who have consumed legal services. And it prompts three more general issues that I will deal with towards the end.
Honesty. It is one of the core Principles of conduct set out by the Solicitors Regulation Authority (SRA). We might immediately think of naughty lawyers with their hands in the client account, but it is evinced in all manner of behaviour and dealings, and it sits closely alongside the Principle that a solicitor must always act in a way that upholds public trust and confidence in the solicitors' profession.
My commentary below is taken from the freely available judgment of the Solicitors Disciplinary Tribunal delivered on 7th March 2024. I have omitted some detail for the sake of brevity, but hope that I bring out the essential detail.
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Matthew Nester was admitted as a solicitor in July 2021. He worked at Hugh James Solicitors. A report from the firm to the SRA explained that on 5th January 2022 Nester had recorded 30 minutes of time for a 'quarterly file review' on a closed file, the work done on 4th January. The review is a standard periodic compliance procedure to verify the quality of ongoing work carried out by a law firm.
A supervising partner noticed the record, and questioned Nester on his action as the file was already closed and in any event it was not part of Nester's role to carry out periodic file reviews. Nester responded that he had completed the review following a firm-wide email reminding staff of the need for reviews to be carried out.
The partner asked Nester to produce the checklist created by him for the review. When Nester produced this, the partner registered that the document had been created on 10th January, rather than on 4th January, the day when Nester said he had carried out the review. The partner also observed that the firm-wide email had been sent on 5th January, the day after when Nester alleged he had done the work. Following a time-recording report, it was revealed that Nester had done a total of nine postings for nine file reviews he claimed he had carried out on 4th January, plus six postings for six reviews he claimed had been done on 5th January. Instances were exposed too where Nester had recorded more time than he had in fact spent on work matters.
Nester was dismissed from the firm on 12th January for dishonest behaviour. The firm reported Nester's conduct to the SRA on the same day. Nester reported himself to the regulator on 7th February, and and explained why he had behaved as he did. He denied dishonesty as he claimed he had intended to complete the work at a later date.
Why was the work not done before Nester recorded it as done? Nester explained that he had not reached his chargeable time recording target for the relevant week as he was distracted through working at home while doing childcare for his three young children who were also at home due to a schools lockdown in Wales.
His defences were that he had put down the time entries carelessly, and that he had intended to carry out the work but had not been able to do through being dismissed. It was noted that by the time of a disciplinary meeting on 10th January there was no evidence of Nester having done the reviews (subtext and my inference being that if someone knew what they had done was wrong then they might have rushed asap to rectify the problem).
Despite Nester's arguments, the Tribunal was clear on the facts, namely that for the postings of relevant time under consideration Nester knew that he not carried out the work at all, and that thus his postings were wrong. The Tribunal found as a fact that there was no agreement within the firm that Nester could record time and then do the work later.
Thus in the Tribunal's judgment '...Mr Nester was dishonest by the standards of ordinary decent people'. Also (and this goes to a specific part of the Code of Conduct) he had mislead his employer by allowing the firm to believe '...that he had worked on files when either he had not or when he had worked for less time than was recorded'.
What about Nester's lack of experience as a qualified solicitor? Here the Tribunal was unequivocal, and followed a line that the SRA has consistently taken:
'While he [Nester] was a newly qualified solicitor at the time of his misconduct, the Tribunal considered that his lack of experience was not a mitigating factor in his conduct. All solicitors, irrespective of their experience, knew that it was improper to record time for work that had not been performed'.
Referencing case law on solicitors' honesty, the Tribunal quoted the judge who observed from an earlier case that: 'It is in the public interest to ensure that a solicitor can be trusted "to the ends of the earth" '. For Nester there were multiple time recording entries that damned his conduct: 'It was deliberate, calculated and repeated across a number of files'.
The settled position where there is a finding of dishonesty by a solicitor is that save in exceptional circumstances the solicitor will be struck off the Roll. There is a lesser punishment that the SDT has power to impose, namely the suspension of the solicitor from practice for a period of time. The Tribunal accepted mitigating factors put forward by Nester's counsel at the Tribunal hearing:
- He had intended, at some future point, to undertake the work that he had recorded
- He had cooperated fully with the firm's internal investigation and had admitted to failing to maintain public trust and failing to act with integrity (the duty of integrity, wider than dishonesty, is a further Principle - my conjecture is that if Nester had been found to have acted without integrity but not dishonestly then he might have escaped striking off)
- He had self-reported his conduct to the SRA
- 'His misconduct, whilst repeated, happened over a very short period of time in a previous unblemished career'
- 'He had displayed some insight into his misconduct and had offered his apology to the Tribunal, the public and the profession'.
Was that enough? What about the conditions under which Nester was working at the time? The case authority that the Tribunal relied on was not helpful to his plea for mitigation on this ground. The words from the authority (2018 case) read:
'...in my judgment, pressure of work or extreme working conditions whilst obviously relevant, by way of mitigation, to the assessment of the SDT has to make in determining the appropriate sanction, cannot either alone or in conjunction with stress or depression, amount to exceptional circumstances. Pressure of work or of working conditions cannot ever justify dishonesty by a solicitor'.
The Tribunal decided that Nester should be struck off the Roll, and that there were no mitigating circumstances to justify a lesser sanction.
Now, there is the question of whether the Tribunal's decision was correct. People will have their views, and I prefer not to argue the toss on the facts. However, there are three general issues thrown up that I think deserve reflection:
Mental health
A short one.There was no suggestion that Nester was suffering from mental health difficulties beyond the pressure of working in domestic circumstances during the pandemic. But would a Court from 2024 onwards depart from a finding from 2018 that depression can never be mitigating factor when there has been misconduct?
Hybrid working
In solicitors' practice a pattern seems to have settled post-pandemic under which a lawyer will spend part of the working week in the office and part working from home. Benefits for those taking advantage of this include reduction in travel costs and greater flexibility to combine work with childcare. It has also been argued that the business can get the benefit of greater productivity (chargeable hours) than can be achieved in a 100% office bound environment.
But taking our reflection from Matthew Nester's home situation and extrapolating this into a general discussion, what does a lawyer commit to when they elect to spend part of their week working from home? Home has potential impediment factors, depending on circumstances for any working day: children and/or pets in the background; building works noise; deliveries at the door; creaking WiFi as housemates attempt also to work online. You might be able to think of more.
This is not to suggest that the office is a hermetically sealed temple of industry, and colleagues popping by for a chat can be more annoying than a life partner innocently blasting in to ask if you know where the coffee jar has gone. But in the office, domestic distractions are naturally distanced.You become a work person, rather than a person trying to cope with competing in your face demands. And if the technology is failing then it is the firm's problem.
According to Matthew Nester he was '...distracted from his work throughout that week [week of 4th, 5th, 6th and 7th January] as he was working from home and his children were also at home because their schools had not re-opened due to a lockdown in Wales'. Nester's counsel described this as a 'chaotic' period. But the Tribunal decided that Nester's working conditions were not exceptional circumstances that could justify a sanction lower than striking off.
Once again I stress that I am not going to judge the SDT's decision on its facts. For this WFH element, more generally there could be avenues of questions to pursue eg was Nester at home by choice as an alternative to being in the office. Also his counsel's submissions include a note that he was working '...alongside his wife and children'. Some on reading the account up to now may be conjecturing a scenario of Nester at home as a sole carer - not correct.
But I think that all this throws up the broad question of what should be expected from an employee working from home. Is it a need for a total equivalent focus to an office-bound day? For a professional person this is not necessarily as draconian as it might seem. We are not monitored by keystrokes or the requirement to have done a minimum number of sales calls in an hour. A professional person may warm to the challenge that you must get your work done in a day and keep your clients happy (with a measurable target for a lawyer of minimum chargeable hours), but how you achieve it is up to you. When those without younger children are settling down for an evening's telly, others may have finally got the kids off to bed and are at the laptop catching up with work.
If hybrid working is here to stay it cannot be part of an employer's duty of care to modify the employee's output expectation to have regard to the distractions of regularly working from home. But there will be exceptional circumstances, for example where someone is caring for a person recently discharged from hospital and where no other support is available.
You may protest that surely exceptional circumstances have always been around and are managed well in any decent employer-employee relationship. In legal practice I was lucky to be in a demanding but compassionate organisation where if someone had to disappear because of a family emergency the culture was: 'Go now; don't worry and we will keep the work going.' Compassionate colleagues piled in to help.
Yet the historic position has been of professional people by default travelling to an office on every work day, with occasional exceptions. That does not appear to be our world going forward. So I think that the question of expectations, quite apart from Matthew Nester's particular situation, is worth discussion.
Putting down chargeable time for work you have not done
Shock horror for users of law firm services. Nester was undone by dishonesty, and the SRA do not have a concept of only a small dishonesty. More precisely he was undone by smoking gun dishonesty, where initial discrepancies were noticed, and enquiry rapidly moved to hypothesis of dishonest behaviour.
Nester was not helped by the work concerned being primarily discrete packages ie file reviews. You've either done the review or you haven't (and for lawyers reading this yes, it was odd that work for compliance purposes only and therefore non-chargeable should have been put down as chargeable time - but NB no charge went through to a client).
I said 'primarily', and there is a short note above that Nester had admitted recording more time than he had spent on work matters. In more detail, when Nester did a full report on his time recording to the supervising partner, he identified '...additional matters he had worked on between October and December 2021, on which he had billed time in excess of that he had actually undertaken working on those matters'.
I wonder how many lawyers can see where I am going. Let me paint a totally hypothetical picture. You do a document drafting task. It takes you 2.5 hours. You are helped by good instructions, a decent precedent from which to work, and having been lucky to have had peace and quiet for the exercise. How much chargeable time to put down? 2.5 hours, obviously! But you are a little short at this time on your chargeable hour target. And taking 3 hours for the task would be perfectly proportionate to reasonable expectations. Plus I will add a heretical thought (not my ethical belief - I hope that I don''t need to say this) that if no one is going to question the time put down then there is unlikely to be a concern.
Could something like this ever happen in practice? I must be careful not to defame the profession, so cannot have my comments taken as an imputation that anything of this nature happens. But I am willing to leave the point out there and at least suggest that there must be a temptation...
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A sad and salutary tale indeed. I do hope that for the sake of both Matthew Nester and his family he is able to rebuild his life. Everyone makes mistakes.
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The author teaches professional ethics to junior lawyers and is a former Managing Partner of a City law firm.