Trigger warning: discussion of suicide attempt
Legal Twitter has been buzzing recently with the news that junior solicitor, Claire Matthews, formerly of Capsticks Solicitors, has been struck off. (I refer to her as 'Claire' in this piece rather than 'Matthews' because the latter seems impersonal and cold - no disrespect is meant by it).
Claire left a briefcase containing sensitive documents on a train. The Solicitors Disciplinary Tribunal ('the Tribunal') found that a week after losing it, she told a colleague that she had forgotten the case at home and that she would return it - a statement which the Tribunal found was untrue as Claire knew she had lost the case at this point .The Tribunal also found that Claire had emailed her supervisor to say she left the briefcase on the train that morning, concluding that the email had been written to make it seem as though the briefcase had been lost later than it had actually been lost.
Claire had been admitted as a solicitor in September 2017 and had only been qualified for eight months when the incident occurred. She had been employed by Capsticks for just over three weeks when she lost the suitcase.
Interestingly, it was not Capsticks who had reported the matter to the SRA on the basis of Claire's dishonesty or conduct; the investigation was triggered because X - the litigant in person to whom the lost papers related - complained directly to the SRA.
There are a few things that trouble me about this decision. There's a lot to the judgment and I can't possibly go into all the detail; it should be read in full. But I would make the following observations.
There are repeated references in the judgment to Claire's historic struggle with her mental health. Four months before starting with Capsticks, she had been signed off work by an Occupational Health specialist with stress and anxiety. Claire told the tribunal that she was "overcome by uncontrollable fear, anxiety and panic as to what had occurred" and "she became panic-struck with the dread of informing Capsticks as to what had happened, particularly as she had only been with the firm a matter of weeks." She described the days after the loss of the briefcase as "the darkest of her life: she barely ate, slept or showered." At her lowest point, she said she resorted to drinking bleach in an attempt to end her life. Claire's sister provided a supporting letter where she said she hid her balcony key because she was worried about Claire's state of mind.
There doesn't seem to be any appreciation here of the effects of Claire's struggles with her mental health - undoubtedly aggravated by the circumstances - on her decision-making. Claire submitted to the tribunal that the delay in her reporting the data breach was because of her stress and anxiety; that, on the basis of her mental health, her behaviour had been irrational and a "moment of madness". Mr Tankel for the SRA submitted that this wasn't a "moment of madness" case because what may have started as a reactive crisis became calculated and deliberate with Claire telling lies on two separate occasions.
James Turner QC has posted about this judgment on his Twitter feed. The comments on the tweet are worth a read. What I found particularly interesting was his response to a comment about how the ruling said this wasn't a moment of panic on Matthews' part but that it was played out over a week. Mr Turner QC observes: "Panic (and it's effects) [sic] can last over an extended period, as I can assure you from personal experience". This is certainly my experience of panic. Panic can be debilitating. It can be prolonged. It's certainly not limited to the moments immediately after a crisis. For someone with a history of anxiety and depression, I would not at all be surprised if panic caused a period of extended irrational thinking. If anything, the more time that passes, the more an initial crisis becomes a problem of insurmountable proportions in the mind.
In taking into account Claire's mental health, the Tribunal concluded that there "was no evidence which gave any indication that the Respondent's mental health had been of a degree that would have caused her to be unaware of the facts or incapable of distinguishing between true and false; honesty and dishonesty". This seems to be missing the relevance of Claire's mental health. The point is that she got herself worked up to such a point that she ended up digging a bigger hole for herself. She was panicked, anxious, stressed and depressed, and she behaved in a way which someone with more presence of mind would have known is not advisable. There doesn't seem to be any sort of nuanced acknowledgment or understanding in the judgment of the impact of Claire's mental health on her actions. For me, this is illustrative of a profession that often "talks the talk" about wellbeing and mental health, but more often doesn't "walk the walk".
I'm not saying that lawyers who struggle with their mental health should get a "free pass" if they act dishonestly. But this case doesn't strike me as one about a solicitor going out of her way to be deceptive. Indeed, Claire's supervisor wrote in a statement: "Whilst I cannot say for certain, I consider that after Claire left the suitcase on the train she panicked and was no longer thinking rationally, which was a reason for not disclosing the loss earlier. Whilst I do not believe it was an intentional deception, she was not truthful with us about what happened." [emphasis added] This is a junior lawyer, barely qualified, recently signed off because of her poor mental health, who panicked and made a bad decision. Yes, she should have reported the loss of the briefcase as soon as she became aware of it. But, at worst, she was trying to buy time in the hope that the case would turn up. She confessed to losing the case within a week.
I would also ask: what does it tell us about junior lawyers' working environments that Claire felt unable to speak to her supervisor or colleagues about what had happened? I'm in a fortunate position. I'm in a chambers where I feel well-supported and I'm relatively confident that if I made a mistake, I would own up to it immediately; I know that my colleagues would try their best to help support me and offer advice. I am also acutely aware that many, many, many of my peers are not that lucky.
I'm reminded of the case of Sovani James, struck off for backdating letters despite the SDT judgment highlighting the"pressures... passed down to the fee earning team who must have felt that they were carrying the weight of the world on their junior shoulders", "the bad, ineffective, and inappropriate management" and the fact that the Tribunal's assessment of James' former supervisor and the firm's compliance manager was that "neither would be particularly empathetic when faced with a problem from a vulnerable fee earner which might in some small way damage the Firm's inexorable progress towards achieving its goals." In the case of Emily Scott, the SDT found that Scott had been "deceived, pressured, bullied and manipulated" by a partner at the firm, but concluded that "the fact that [Scott] was under pressure and working in a horrendous environment could not excuse dishonesty." (See also: letter from the Chair of the Junior Lawyers Division to the CEO of the SRA, commenting on the two cases and querying what protections are in place to ensure junior lawyers are able to raise concerns and ask for help.)
Now, I'm not saying anything about the working environment at Capsticks, nor am I comparing Capsticks to either of the firms in the Sovani James and Emily Scott cases. What I'm saying is that the pressure on junior lawyers is enormous and the problem is much broader than any individual firm's work culture. We work incredibly hard to obtain trainee solicitor/pupil status. Once there, there is a huge weight on our shoulders not to "mess it up". It is inherent in the culture of the legal profession to be perfect; to come across as solid and reliable so that clients have total confidence in us. But ultimately, we are human. Being a lawyer is an ethical minefield. Every day, we are confronted by ethical dilemmas, and we have to make the right decision as best as we can. Both barristers and solicitors are given a broad set of principles against which we try and do "the right thing". We won't always know the right answer - especially when we're starting out - and as much as some might expect us to have come out of the womb with solid judgment, my view is that judgment develops with time and experience.We won't always get it right. When we don't get it right, that is not necessarily a reflection of our overall integrity but just the reality that we are human, and therefore fallible.
We won't always get it right. When we don't get it right, that is not necessarily a reflection of our overall integrity but just the reality that we are human, and therefore fallible.
Just reading this judgment made me anxious. It's every junior lawyer's worst nightmare come true. Thankfully, I haven't left a suitcase full of papers on the train. If I had, I would hope that I would 'fess up to it immediately. But I can also put myself, very easily, into Claire Matthews' shoes. I have suffered from extremely paranoid anxiety in the past and - on occasion - the present. I would catastrophise and convince myself that my world would come crashing around me. I feel like many of those anxieties have been aggravated in an unforgiving profession where we are expected to be perfect. So I know exactly how this junior lawyer felt backed into a corner, terrified that her career would end before it really started.
We need to foster an environment in which a junior solicitor is not in her home, thinking very dangerous thoughts about drinking bleach and seeking solace in a wine bottle because she lost some papers. I can say from experience that sometimes, baby lawyers lose all sense of perspective about what matters, and how big our mistakes really are. And that's because we are in a seemingly unforgiving profession. It is incumbent on firms and chambers to make sure their employees and members know: it's okay if you mess up. It really is.
A final thought: I wonder where Claire is now and how she is coping. We know from the judgment that Claire was working on a temporary basis at a call centre for £9ph (though that is likely to have come to an end with the COVID-19 outbreak.) Are there any procedures in place or after care for those reeling from the life-changing consequences of being struck off? Or has Claire been forgotten, the SDT's job now done? Does anyone care?
I am not saying Claire's conduct should go unpunished. While we may not always live up to the standards expected of us, there should be consequences if we fall short. The issue here is proportionality. I'm deeply concerned about the heavy-handedness of the SDT and what it tells us about (a) a broader lack of sympathy or understanding for those struggling with their mental heath and the impact on their decision-making, and (b) a failure of the legal profession to take responsibility for a culture which makes it incredibly difficult for many junior lawyers to speak up when things are going wrong (and this judgment certainly isn't going to help).
I am heartened by the backlash on Twitter and the offers to take on Claire's appeal pro bono. I hope that she reads this post and knows that I, for one, feel enormous sympathy towards her.
The full judgment can be accessed here: https://www.solicitorstribunal.org.uk/sites/default/files-sdt/12005.2019.Matthews.pdf