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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nicastro, Re Solicitor's Act 1974, No 11 Of 2001  EWCA Civ 1538 (16 October 2001)
Cite as:  EWCA Civ 1538
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London WC2A 2LL
Tuesday 16 October 2001
B e f o r e :
|IN THE MATTER OF THE SOLICITOR'S ACT 1974|
|RE A SOLICITOR|
|NO 11 of 2001|
Smith Bernal Reporting, 190 Fleet Street
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
MR G LYNCH (Solicitor, instructed by Messrs Drysdales, Southend on Sea, SS2 6HZ) appeared on behalf of the Law Society.
Crown Copyright ©
"Mr Nicastro had accepted that he had been guilty of serious criminal offences involving dishonesty for which he had served a custodial sentence. The Tribunal accepted that Mr Nicastro and his family had had a very difficult time. It was well established that a solicitor who had been struck off the Roll of Solicitors following acts of dishonesty on his part would be very unlikely indeed to be restored to the Roll of Solicitors. It is hard to conceive of the type of exceptional circumstances that would permit the Tribunal to order the restoration to the Roll of such a person. Whilst having every sympathy for Mr Nicastro's predicament, the Tribunal is not able to overlook the fact that he was struck off the Roll of Solicitors having been convicted of serious criminal offences involving dishonesty carried out in the course of his practice as a solicitor as a result of which he had served a long period in prison. It would not be in the interests of the public or the good reputation of the solicitors' profession to grant Mr Nicastro's application."
"Only infrequently, particularly in recent years, has the tribunal been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty has been established, even after a passage of years, and even where the solicitor has made every effort to re-establish himself and redeem his reputation."
"....to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain his reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled by denied re-admission.....A profession's most valid asset is its collective reputation and the confidence which that inspires.
Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness.....The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."
"The problem is, quite simply, one which I have met before and on which I have expressed a view before, namely that, however sympathetic one may be towards an individual member of either branch of the legal profession, if you fall very seriously below the standards of that profession and are expelled from it there is a public interest and an interest in the profession itself in hardening its heart if any question arises of your rejoining it. Neither branch of the profession is short of people who have never fallen from grace. There is considerable public interest in the public as a whole being able to deal with members of those professions knowing that, save in the most exceptional circumstances, they can be sure that none of them have ever been guilty of any dishonesty at all.
There must be cases where, in the view of Parliament, a solicitor should be readmitted to the Roll, but I am bound to say that I regard that as a very exceptional situation. It must take account of the gravity of the offence. While it would be wrong, and indeed by definition it is impossible, to define 'exceptional circumstances', the sort of case that I have in mind would be a case where it could be shown that, by a mental illness or overwhelming stress of some sort, there was a moment of complete and utter aberration which was totally out of character and which might be lived down by subsequent conduct to such an extent that it could be said that any reasonable-minded member of the public, knowing the facts, would say, 'Really any profession should be proud to readmit the applicant as a member'."