Saying that you acted the way you did because your boss told you to do so may not be enough of a defence.
Michael Cohen, a former lawyer for President Trump, has recently found himself disbarred and in an ethical maelstrom of his own making. In attempting to explain his actions to the House Committee on Oversight and Reform, he said; “I have lied, but I am not a liar. I have done bad things, but I am not a bad man. I have fixed things, but I am no longer your “fixer,” Mr Trump.”
Not only has Mr Cohen been disbarred, but he is also a convicted criminal; in light of these facts, his statement appears to be riddled with contradiction. Is it possible that he can admit having lied and done bad things but not be branded by those labels? Is his internal ethical compass so defective that is he unable to identify the heinous nature of his wrongdoings, even though he has made admissions?
It isn’t unusual for solicitors in England and Wales to find themselves in a similar predicament, although it is unlikely any of them would be able to blame the President for their woes! It is not unheard of for a solicitor who is accused of wrongdoing, to blame another; perhaps a more senior solicitor or these days, even a non-lawyer business owner. Admitting that one has made a mistake, knowing that such admissions could lead to you losing your livelihood, is a tough thing to do. Solicitors are required to display the highest standards of ethics and professional conduct; the expectation is that admissions will be made in the regulatory context, where appropriate. Solicitors are not only required to admit their mistakes when caught out, but they are also expected to report themselves to the regulator.
The following example is a recently reported decision from the Solicitors Disciplinary Tribunal (SDT), which highlights problems facing solicitors whose actions are ostensibly directed by others.
A trainee solicitor worked for a firm in which the two principals had behaved contrary to the code of conduct and the ethical standards expected from them. She alleged that she saw a partner preparing documents purporting to include the client’s signature, although she was aware that the client had not signed the document. To cover up a mistake made by the same partner, she was directed by him to fabricate file notes and other papers and to bill to include work as per the fabricated notes. In one such instance, a costs report concluded that the firm had overbilled a client by 492%. There were multiple allegations about the creation of invoices and client account breaches against both partners. In a third case, a client made a complaint, which was being investigated by LeO, and the same partner made staff members “fabricate invoices, time recordings and letters to create a complete file requested by the Legal Ombudsman that did not exist.”
Their actions were brought to the regulator’s attention by the trainee, who acted as a “whistleblower”. She made the report after she qualified and had left the firm. As a result of her statement and subsequent investigation, she and both partners were subject to regulatory action.
One of the allegations against both partners was that they had failed to supervise the junior, both in her role as a paralegal for two years and subsequently as a trainee solicitor. In response to those allegations, both partners made admissions that they had “failed to adequately supervise” but they claimed that this was not to the extent she alleged.
She claimed that she did what she was told to do as “such actions were only done under the instruction of [a partner] and again I was not given an option. It was a case of do as you are told or lose your job and any chance of qualifying as a solicitor”. She said she acted under duress when she conducted herself in a way that breached the code of conduct. She did not feel that she had an option as the COLP was “very passive” in his duties and acting as though his head was in the sand. It would appear that the COLP wasn’t able to control his partner’s actions. The trainee was a junior member of staff who felt that she had no choice but to comply with these requests, although she admitted that she knew what she was doing was wrong.
Michael Cohen and the trainee solicitor both say that they were told by people in power to act in a way that subsequently called their conduct into question. At the time, neither felt that they were in a position to say no. The trainee solicitor noted that although she knew what she was doing was wrong, she was “deeply concerned about the repercussions on myself and my employment if I did report this in the middle of my training contract”. Her concern about reporting the breaches was that she wouldn’t be able to qualify, which is a threat that the partner held over her head. Paradoxically, her chances of practising as a solicitor would have been better if she had either kept quiet about the wrongdoing at the firm or if she had left at the first sign of unethical behaviour. Even as a trainee, her ethical obligations were held to the highest standards and her priority should have been the clients and not her desire to qualify.
Ultimately her delay in reporting the misconduct exposed clients to continued risk, which was taken very seriously by the SDT. The fact that the trainee had been working in a horrendous environment did not excuse her dishonesty although the Tribunal was sympathetic with the fact that she wouldn’t have committed any misconduct had the partner not directed her to do so. She was struck off, as were the two partners, although it is to be noted that the costs that she was ordered to pay were substantially less than the partners were made to pay.
Many commentators have been surprised that she was not given a lesser sentence, given that she was the one who raised the issues with the SRA. The SDT noted that her conduct was so severe that only a strike off would be sufficient punishment. One significant difference between the young solicitor and Michael Cohen seems to be that she had genuine insight into her wrongdoings, which can’t be said of Mr Cohen who continues to blame others while failing to take responsibility for his actions.
Is it a justified defence to say that someone else was in control of your actions and so you shouldn’t be held liable for wrongdoing? In these two cases, it seems not. Both Michael Cohen and the young solicitor have been punished; both have lost their ability to practice law. Micahel Cohen will soon be deprived of his liberty when he starts to serve his three-year sentence.
However, in the case of the young solicitor, the partners failed to supervise her, but neither admitted directing her to falsify documents or to invoice for work not done. They blamed her for her misdemeanours, taking no responsibility. When making her disclosures to the SRA, she made admissions regarding her wrongdoing; this shows sound ethical decision making after the event. Her undoing before the regulator was that she hadn’t reported matters promptly, which had left clients exposed to further wrongdoing.
Trump says that Michael Cohen is lying about the President’s involvement in underhand activities, to reduce his prison time. We will never know what happened in either of these cases, but there is a great deal more sympathy for the young solicitor than for Michael Cohen.
Mena Ruparel is both a practising solicitor and an experienced legal trainer with a mission to maintain the professional standards of the legal profession for the benefit of both the public and practitioners. Insights gathered from years at the front line have been distilled in this book.