In Solicitors Regulation Authority v Just and anor, a decision of the Solicitors’ Disciplinary Tribunal of England and Wales delivered 21 December 2022, the respondent solicitor, Mr Just, was charged with a number of professional offences. He was struck off. One of the charges concerned his communications with opposing solicitor and also opposing counsel, Mr Noble, in litigation:
The Applicant’s Case
44.1 Ms L, the widow of Mr K, instructed Mr Just to apply for letters of administration in relation to the estate of the deceased, on the basis that Mr K had died intestate.
44.2 Ms E, daughter of Mr K, was represented by Mr Noble [of counsel], and reported to Mr Just that there was in fact a valid Will in place. Following this, Ms L produced a different Will, seeking to establish that that Will post-dated the Will Ms E had produced. The matter was heard before the Central London County Court on 2 December 2016 (the ‘Court’) to determine the validity of the two competing wills.
44.3 Following the Court’s Judgment and Order dated 15 February 2017, Mr Noble reported a number of matters to the SRA on 21 April 2017. One of the concerns that he raised was that he received emails which contained inappropriate and unprofessional comments on Sunday 30 April 2017, including the following:
- You remind off a Grade 7 bully I had to slam to the Ground
- Is that all you got Mr Noble try harder, and while you are it add Nigger to the list, as I am also called Nigger
- I know you will so died and go to dust Mr Noble so keep doing what you are doing you are just fading away one step closer to your grave
- You remind me of a little ????
- I will not lose any sleep for your nonsense, as I know the Plagues will fall on you just like Pharaoh
44.4 Further, Mr Noble noted that in Mr Just’s statements dated 7 March 2017, 27 March 2017 and 17 April 2017 he made a number of inappropriate comments including:
- I am inviting Mr Noble and the Claimant to prove that I had something to do with. If not just keep their mouth shut.
- All they have done so far is make false allegations, any old chump can make false allegations, but to support it with evidence is another thing.
- I am of the opinion that Mr Noble has a problem with black men. I could be wrong, but I honestly believe that, because I am black he thinks that I am dishonest. I have come across individual like Mr Noble who believe that, because of the colour of my skin I am automatically dishonest.
- I have had a few dialogue with Mr Noble and he gives me the impression that he wants me to refer to him as master as in slavery days. It is sad that you have some individuals like Mr Noble who thinks that the colour of his skin gives him some special privilege or right be prejudice and arrogant and to accuse me of a crime I did not commit without any evidence except the colour of my skin.
44.5 Mr Noble stated that Ms E received the following email messages on 30 April 2017 from Mr Just:
- I really do not give a damn what you do or say, as I got somebody with me that will bring both you and Mr Noble to your knees.
- Take my word Ms E leave me alone, as you will soon regret the day that you met. All I can say to you be careful when you think that you are standing you are actually falling. Your judgement is coming soon beware, and it will not be an easy one, the Most High knows that. Just remember that whosoever diggeth a pit shall fall in it. You and Mr Noble will fall in your own pit sooner than you think.
44.6 Mr D further stated that the emails were just part of a series of inappropriate emails and communications. In other statements of Mr Just including those dated 27 March 2017, 3 May 2017 and 26 May 2017 he made various assertions that Mr Noble was racist and that the claims against him were ‘bogus, baseless’ and motivated by resentment, malice and racism, amongst others.
44.7 Ms Culleton submitted that the language used by Mr Just was inappropriate, offensive and threatening in its use of words and tone. Irrespective of whether Mr Just genuinely believed that the communications from Mr Noble or Ms E had been in any way unreasonable, it was submitted that his language was completely inappropriate within a professional context and was unjustifiable.
44.8 The SRA Warning Notice entitled ‘Offensive Communications’ first published 24 August 2017 and updated 25 November 2019, stated: “We expect you to behave in a way that demonstrates integrity and maintains the trust the public places in you and in the provision of legal services. In the context of letters, emails, texts or social media, this means ensuring that the communications you send to others or post online do not contain statements which are derogatory, harassing, hurtful, puerile, plainly inappropriate or perceived to be threatening, causing the recipient alarm and distress.”
44.9 The Warning Notice also stated:
“Communications with other opposing lawyers and litigants in person It is not uncommon for emails with the other side in relation to a client’s matter to be robust, particularly in litigation. However, you should ensure such communications do not cross the line by using inflammatory language or being gratuitously offensive, either to the other side or about their client. Your role is to act in the client’s best interests; antagonising the other side is unlikely to achieve this. We expect you to remain objective and not allow the matter to become personal, regardless of the provocation or your client’s instructions. You are not your client’s ‘hired gun’ and you may be at risk under Principle 3 if you allow your independence to be compromised by being drawn into using offensive language or making offensive comments in order to meet your client’s expectations.”
44.10 Whilst this Warning Notice was first published just a few months after the alleged conduct by Mr Just, its purpose was – and is – to help solicitors understand their obligations, even as they existed before the Warning Notice. Keeping communications professional and appropriate was, and had always been, a basic expectation and obligation.
44.11 Ms Culleton submitted that the content and tone of the statements and comments made in communication with Mr Noble and Ms E was aggressive and threatening; containing threats of injury and death and otherwise inappropriate comments as a professional person engaging in communications with another professional and a lay client. The comments alleging racism by Mr Noble were also plainly inappropriate. In conducting himself as he did, Mr Just failed to act with integrity in breach of Principle 2.
44.12 The conduct alleged also amounted to a breach of the requirement to behave in a way which maintained the trust placed by the public in them and in the provision of legal services. Public confidence in Mr Just, in solicitors and in the provision of legal services was likely to be undermined by solicitors who make such unprofessional inappropriate comments and threats.
44.13 Mr Just therefore breached Principles 2 and 6.
The First Respondent’s Case
44.14 Mr Just submitted that the SRA was prosecuting him for the same allegations he had been exonerated for twice before. This allegation was an attempt to give Mr Noble another chance at a case that he had already lost.
44.15 In December 2017 Mr Just had appeared before the High Court for a hearing that was scheduled for 5 days but only lasted a few hours once the Judge discovered that “the SRA closed my practice based on the false allegations” of Mr Noble.
44.16 Mr Just submitted that Mr Noble had a “serious vendetta” against him. He had applied for six ex parte injunctions. He had obtained an injunction to stop Mr Just from advertising his property for sale. The SRA had supported Mr Noble in that application.
44.17 Mr Just did not accept that the comments made were inappropriate, offensive or threatening. In particular, it could not be said that quoting passages from the Bible was in breach of his regulatory duties.
44.18 In closing, Mr Just submitted that the background to the communications with Mr Noble and Ms D, was the accusation made by Mr Noble that Mr Just was not willing to attend court in circumstances where Mr Just had made it plain that he was happy to attend court but was abroad.
44.19 Mr Noble proceeded to make numerous allegations against Mr Just and a number of orders requesting that his assets be frozen, when Mr Just did not owe any money. He responded to the accusations and was now being prosecuted as a result. Mr Just noted that it was Mr Noble’s evidence that he was not threatened by the communications, and he did not consider that Mr Just was going to hurt him.
44.20 Mr Just submitted that his communications were not inappropriate, offensive or threatening. They were statements of fact. Many of the complained of passages were quotes from the Bible. The prosecution in relation to those passages was a breach of his fundamental human rights. The communications had already been considered and had been found by the Judge to be statements of fact.
44.21 Mr Just did not think it was appropriate for him to be prosecuted for matters stated in his witness statements. When asked by the Tribunal whether there were any boundaries to the way matters could be expressed in a witness statement Mr Just explained that when one was defending oneself against accusations made, there were no boundaries.
The Tribunal’s Findings
44.22 The Tribunal considered all of the complained of communications. It noted that Mr Just had responded in the context of extremely hostile litigation. Mr Noble, on his client’s behalf had been aggressive in his pursuit of Mr Just seeking a number of court orders against him, including the freezing of his assets. The Tribunal had had the benefit of seeing Mr Noble give evidence. It was clear that he considered that Mr Just had acted improperly as regards the underlying litigation matter and that belief had, in part, driven the complaint made.
44.23 It was clear, the Tribunal found, that Mr Just, in seeking to defend himself against what he considered to be malicious allegations, had expressed his frustration and annoyance in a manner that was inappropriate.
44.24 The Tribunal considered the emails to Mr Noble and Ms D dated 30 April 2017 with great care. Whilst it accepted that parts of those emails were inappropriate, it was not accepted that they were either offensive or threatening. The Tribunal found that even in the context of hostile litigation, members of the public would expect solicitors to be robust, but temperate in the language they used when communicating with the other side. That expectation was even higher when those communications were with the lay client. Accordingly, the Tribunal found that in communicating in the way that he did, Mr Just had failed to maintain the trust the public placed in him in breach of Principle 6.
44.25 The Tribunal did not find that Mr Just had failed to act with integrity. It had found the communications to be inappropriate; the Tribunal had not accepted the submission that there were no boundaries to what could be said in defence of allegations. The Tribunal recognised the extremely trying circumstances of the litigation in which the 67 communications arose, and the aggressive pursuit of Mr Just for allegations that were ultimately not found to be substantiated.
44.26 Solicitors were not expected to be paragons of virtue, and Mr Just’s conduct had been found to be inappropriate and in breach of Principle 6. The Tribunal, having found that the communications had not been offensive or threatening also found that the inappropriate nature of the communications was not such that Mr Just could be said to have acted without integrity.
44.27 Accordingly, the Tribunal found allegation 6 proved on the balance of probabilities…