The High Court found a solicitor guilty of professional misconduct after concluding he failed to send clients any of 93 fee notes submitted by a barrister for work on cases handled by the solicitor’s firm. The court said the solicitor had thereby failed to use his best endeavours to recover the barrister’s fees.
The judgment, delivered by Ms Justice Niamh Hyland on 15 October 2020, concerned an appeal by the barrister, identified as DK, against a Solicitors’ Disciplinary Tribunal decision that his brother, solicitor MK, was not guilty of misconduct. The dispute arose from unpaid fees. The complaint originally concerned 125 cases, later reduced to 93 for the first allegation.
The judge rescinded the tribunal’s finding on that allegation and substituted a finding of professional misconduct. She said there had been a widespread failure over a sustained period to present the fee notes to clients. Law Society guidance required solicitors to use best endeavours to recover counsel’s fees, including writing to clients to request payment and following up those requests.
The tribunal had relied in part on delays in the barrister submitting fee notes and on the prospect that some fees would not be recovered. The High Court found serious and significant errors in that reasoning. It said the tribunal had not adequately analysed the delays across the cases or explained why an accepted working arrangement between the brothers excused the solicitor from sending the notes. Nor was there enough evidence to conclude that recovery was impossible across the cases. The judge also found the tribunal had taken irrelevant considerations into account, including how the barrister had been treated by other solicitors and by his late father.
The court did not overturn the tribunal’s finding on the second allegation, concerning fees allegedly received by the solicitor but not passed on to the barrister. The judge said the tribunal’s conclusion that the conduct in the specific cases did not reach the threshold for professional misconduct was not shown to involve a serious and significant error.
The third allegation concerned whether the solicitor had provided a satisfactory explanation of his efforts to recover fees. The judge upheld the tribunal’s decision, finding there was a sustainable basis for its view that the solicitor had engaged with the barrister’s concerns and tried to answer them in difficult circumstances.
The court did not impose a sanction at that stage. It gave the parties an opportunity to make submissions on sanction under section 8 of the Solicitors Act.