Tuesday, 9 March 2010

Beware: The Drunken GMC Legal Assessor

Today, I noted the above sign and it reminded me of beleaguered Esther Cunningham. Esther once sat on Helen Bright's GMC Hearing. Helen complained that Esther was intoxicated. The GMC paid no attention. Anyhow, the Solicitors Regulatory Body issued this judgment [ see below]. This was sent to the General Medical Council who did not bat an eyelid. We asked them whether the GMC would review all hearings where Esther Cunningham was present. The GMC did not respond.

No. 10068-2008
- AND -
Mr A H B Holmes (in the chair)
Mr J P Davies
Mr S Howe
Date of Hearing: 13th January 2009
of the Solicitors Disciplinary Tribunal
Constituted under the Solicitors Act 1974

An application was duly made on behalf of the Solicitors Regulation Authority by George Marriott, solicitor and partner in the firm of Gorvins Solicitors, 4 Davy Avenue, Knowlhill, Milton Keynes, MK5 8NL on 31st July 2008 that Esther Lynn Cunningham, solicitor, might be required to answer the allegations contained in the statement which accompanied the application and that such Order might be made as the Tribunal should think right.

The allegations against the Respondent were that she:-

1. Impaired her integrity and compromised the good repute of the profession and her duty to the Court when appearing before the Grantham Magistrates Court on 8th November 2006 in breach of Rules 1(a), 1(d) and 1(f) Solicitors Practice Rules 1990 (“SPR”) and in breach of Rule 16A SPR by virtue of breaching Part II 2.1(a) of The Law Society code for Advocacy.
2. Failed to act in the best interests of her client when appearing before the Grantham Magistrates Court on 8th November 2006 in breach of Rule 1(c) SPR.
3. Brought the profession into disrepute whilst delivering legal training to members of the profession on 17th and 18th May 2007 in breach of Rules 1(c), 1(d) and 1(f) SPR.
4. Failed to provide a prompt response to the Solicitors Regulation Authority (“SRA”) in breach of her duty to cooperate with the SRA under Rule 20.03(1) of The Code.

The application was heard at The Court Room, 3rd Floor, Gate House, 1 Farringdon Street, London, EC4M 7NS on 13th January 2009 when George Marriott appeared as the Applicant, and the Respondent appeared and was represented by Richard Nelson, solicitor in the firm of Business Defence Solicitors, 30-31 Furnival Street, London EC4 1JQ.

The evidence before the Tribunal included the admissions of the Respondent, an email message dated 15th October 2008 from Mrs Justice Macur to the Respondent and a number of references relating to the Respondent’s character.

At the conclusion of the hearing the Tribunal made the following Order:-

The Tribunal Orders that the Respondent, Esther Lynn Cunningham solicitor, be suspended from practice as a solicitor for the period of six months to commence on the 13th day of January 2009 and it further Orders that she do pay the costs of and incidental to this application and enquiry fixed in the sum of £5,750.00.

The facts are set out in paragraphs 1 - 22 hereunder:-

1. The Respondent, born in 1956, was admitted as a solicitor on 16th June 1980 and her name remained on the Roll. The Respondent did not currently have a practising certificate.
2. The Respondent appeared before Grantham Magistrates Court on 8th November 2006 where her cousin, Mr B, faced a charge of being in charge of a dog which was dangerously out of control. The dog in question belonged to the Respondent’s son and was being looked after by Mr B while the Respondent and her son were on holiday.
3. The Clerk to the Justices at Grantham Magistrates Court, Mr P, raised matters relating to the Respondent’s conduct in court with the SRA by a letter dated 10th November 2006, to which he attached the handwritten record of the court usher Ms C.
4. The court usher’s contemporaneous record of the hearing, interpreted in light of Mr P’s letter of complaint and substantiated by accounts of Mr C (a solicitor) and Ms D both of the Crown Prosecution Service, noted that the Respondent:-
�� forcibly kissed another solicitor;
�� aggressively demanded to know the identity of other people within the courtroom;
�� behaved as if drunk;
�� refused to sit down until encouraged to do so by her assistant;
�� interrupted the Magistrates whilst they gave their ruling;
�� was escorted out of the courtroom by a security guard; and

3 after removal from the court demanded to know the identities of the Magistrates, stating that she was a District Judge, before telling the Usher to “fuck off” when she (the Usher) refused to divulge this information.

5. The Respondent also referred to the CPS Prosecutor, Mr C, as a “fuckwit”. This, the Respondent subsequently claimed was not meant to be offensive but was intended to be derogatory. The Respondent has since told the SRA that she used the term as an insult to Mr C’s professional competence. The Respondent stated that Mr C, in his role as a Prosecutor for the CPS, “has been called far worse things in his time”.

6. When asked to explain her conduct by the SRA, the Respondent wrote in a letter dated 5th February 2007 that she “should not have gone” to Court, was “thrown” because she was “too close to the problem” and had accordingly upset the Magistrates by being “forceful” in her objection to the Prosecution’s amendment to Mr B’s charge.

7. Despite it having been recorded in the court usher’s contemporaneous record, the Respondent in her letter of 18th November 2007 denied using abusive language before the Usher although she said she “realise[d] that [she] should not have attended Court as [her] behaviour was likely to be somewhat robust.”

8. The Respondent also denied being drunk, in her letter of 5th February 2007, and told the SRA that she had a migraine, which explained her swaying and the need to hold on to the bench to steady herself. The Respondent further told the SRA that she suffers from a medical condition, the medication for which can make it smell as if she has been drinking.

9. In her letters dated 5th February 2007, 16th July 2007 and 18th November 2007, the Respondent told the SRA that she did not appear before the Court in a legal representative capacity and therefore did not appear as a solicitor. However:-

- prior to the hearing, the Respondent wrote to the CPS on headed paper which noted that she was a Solicitor Advocate;
- the Respondent wrote to the CPS in terms that she represented Mr B;
- the Respondent spoke with the CPS about the charge against Mr B on the morning of the hearing;
- once at Court, the Respondent acted as Mr B’s Advocate by booking in with the Court Usher;
- the Respondent made representations to the Court on behalf of Mr B;
- the Respondent forcefully objected to the amendment of the charge against Mr B;
- all members of the Court considered that the Respondent was there to represent Mr B (the defendant);
- the Respondent again telephoned the CPS on behalf of Mr B after the hearing; and
- the Respondent told the SRA that it was “unfortunate on the day an application to up-grade [sic] the charge was made without reference to [her]”.

10. In her letter of 16th July 2007 the Respondent said that she “went into the Magistrate’s [sic] Court to see what was going on” and “decided to call in at the Magistrate’s [sic] to see how proceedings went” with her research assistant “as moral support to see what was happening”.

11. The Respondent delivers legal training to the profession through her company, Cunningham Training Limited (“CTL”), and through other training providers. The Respondent was the tutor on a two day course for solicitors seeking to obtain their Higher Rights of Audience arranged through A, a large legal training provider, on 17th and 18th May 2007.

12. A delegate from the SRA attended the course and noted that the Respondent behaved as if drunk on both days.

13. Other delegates attending the course on the first day were similarly concerned that the Respondent behaved as if drunk and expressed as much to the chief executive of A, Mr L, who attended the second day of the course as an observer.

14. The Respondent appeared annoyed that Mr L was observing her tutoring and twice suggested to the SRA delegate that she should restrain Mr L so that the Respondent could punch him.

15. Mr L, having observed and believing the Respondent to have been under the influence of alcohol to the detriment of her behaviour and performance as a trainer and also noting reports that she had been rude, threatening and abusive to the staff of the hotel at which the course was held, terminated A’s arrangement with the Respondent.

16. In a letter to the SRA dated 26th June 2007 Mr L confirmed that he had previously been alerted to problems caused by the Respondent’s drinking.

17. The SRA wrote to the Respondent on 18th September 2007 to formally raise the matters relating to her conduct at the Higher Rights training course and a response was required by 2nd October 2007.

18. The Respondent replied on 25th September 2007 in terms that she denied all of the matters within the SRA’s letter, did not understand the need for a prompt response to the regulator and would reply to the matters raised in due course, after taking legal advice.

19. Nothing further was heard from the Respondent until 31st October 2007, six weeks after the SRA first raised the matter and following a repeat request for an urgent explanation in a letter of 23rd October 2007, when the Respondent wrote to request a further extension of time in which to respond. The SRA replied on the same day in

5 terms that she had been provided with ample opportunity to consider her response and that it would now proceed to prepare a report for formal adjudication.

20. The Respondent replied to the SRA’s fax on 5th November 2007. She denied avoiding a response to the SRA’s enquiries and stated that she worked away from home and would often not see letters until two or three weeks had passed. She stated that:-

�� she did not act in an inappropriate manner towards a male delegate;
�� the observations which the SRA’s delegate on the course deemed to be inappropriate could be explained by her “outgoing” personality and her “bold” teaching style based on “the American method of NITA”;
�� when she suggested to the SRA delegate that she should pin down Mr L so that the Respondent could punch him, she had done so in jest;
�� she had “[had] to have words” with hotel staff which had prompted the hotel’s complaint to A about the manner in which she had spoken;
�� she did not follow the course agenda or cover all of the required topics because she tailored the course to cover the issues which were assessed;
�� her “general condition of oesophagitis was raised”.

21. The Respondent also told the SRA that she was “particularly stressed for personal reasons at the time”.

22. The SRA prepared a report for formal adjudication which was sent to the Respondent with an invitation to make further comments should she wish to do so. The Respondent replied by a letter dated 18th November 2007 denying that any of the matters alleged arose in the course of her acting as a solicitor and that Practice Rule 1 was therefore not engaged. She denied she was under the influence of alcohol and stated that the impression gained by the SRA delegate and by Mr L was due to the combination of her medical condition and her “extremely informal method [of teaching]”.

The Submissions of the Applicant

23. The Respondent had admitted all the allegations. The Applicant submitted that the Respondent, as a solicitor, is an officer of the Supreme Court and must conduct herself in legal practice (whether for clients or when acting on her own behalf), in her business activities outside legal practice and also in her private life so as not to bring the profession into disrepute.

24. The Applicant indicated that whilst the Respondent had referred to taking medication, the Tribunal was asked to give little credit to the Respondent for this as she had not provided any evidence of it.

25. The Applicant submitted that the Respondent had behaved in such a way so as to impair her integrity, to compromise the good repute of the profession and in breach of her duty to the Court.

26. The Applicant indicated he wished to claim his costs and these had been agreed with the Respondent in the sum of £5,750.00.

The Submissions of the Respondent

27. The Respondent confirmed all the allegations were admitted. The Respondent also accepted that there had been no admission previously of her abuse of alcohol and today was the first day that such an admission had been made. The Respondent submitted that it was widely accepted alcohol dependency is an illness and often, a person suffering from alcohol dependency is misguided, in denial and lacks judgement.

28. The Respondent submitted that 2006 and 2007 were a low point for her and this had caused her to act in the way that she had done. She was extremely embarrassed, ashamed and apologetic about her behaviour and hoped that this was the final stage of her humiliation.

29. The Respondent had had a distinguished career, having worked her way up, not only working in teams but offering assistance to other solicitors and she was now recognised as a good Deputy District Judge. There had been a number of events which had caused particular stress to the Respondent and two of these were very significant. The first was the diagnosis of her son’s illness which was very difficult for her to come to terms with and the other significant stress was an abusive relationship. This had now ended but there was still recent contact which was causing the Respondent continuing distress. The person involved had indeed contacted the Respondent this morning to try and make her more nervous about today’s hearing. The alcohol dependency was the Respondent’s attempt to try and escape from all these problems.

30. In relation to the incidents at Grantham Magistrates Court, the matter had related to an order for the destruction of the Respondent’s son’s dog and the Respondent was very emotional. In order to deal with the hearing, she had had some alcohol to allay her distress. The incident relating to the forcible kissing of another solicitor was also distressing for the Respondent as the solicitor involved was a colleague she had known for thirty years.

31. The Respondent submitted that her actions had taken place when she was not in control and since that time she had sought counselling and was receiving treatment for her alcohol dependency. She had been reinstated to her judicial position such was her recovery. The Tribunal was referred to an email message from Mrs Justice Macur dated 15th October 2008 which confirmed the Respondent could recommence sitting. It was submitted the Respondent had come to terms with events and had now dealt with them.

32. This was a tragic case and the Tribunal was asked to show understanding and sympathy whilst acknowledging the Respondent’s behaviour was not acceptable.
33. Concerning the training course, the Respondent had not undertaken any training since the incidents referred to. It was submitted that when the Respondent had said to the delegate on the course that she should hold Mr L whilst the Respondent hit him, this was a humorous comment with no intention of violence being delivered whatsoever.

34. The Tribunal was referred to the number of references produced in support of the Respondent’s character. These showed that she was highly regarded in her judicial capacity and had a reputation for being polite but firm. The Respondent was a caring individual who would normally deal with matters with dignity and confidence and not in the manner referred to by the Applicant today.

35. The events relating to the allegations had taken place when the Respondent was not in control; 2007 had been a very bad year for her, she had suffered a stroke as well as dealing with her other problems. It was submitted that tremendous willpower and control is required in order to overcome alcoholism and the Respondent had shown that she had this. She was now performing her judicial functions again, and indeed that was her sole source of income as she had not undertaken any training since the incidents complained of.

36. The Tribunal was asked to deal with the Respondent with leniency bearing in mind the Respondent had acknowledged her problems, dealt with them and now got them under control. The Respondent also confirmed that the Applicant’s costs had been agreed at £5,750.00.

The Findings of the Tribunal

37. The Tribunal found the allegations to have been substantiated. They were not contested.

38. This had not been an easy case for the Tribunal to determine the correct sanction to impose. Mr Nelson, on behalf of the Respondent, had understandably urged the Tribunal to exercise leniency. However, the Tribunal had to look carefully at the circumstances in which the Respondent found herself here today, especially her admitted misconduct whilst acting as a solicitor and advocate in the Magistrates Court. That conduct was simply not acceptable and could not go unpunished.

39. It was only today that the Respondent had given an indication that she admitted the allegations and previously she had denied the allegations although it was appreciated that this could have been due to her alcohol dependency.

40. The Tribunal acknowledged the considerable difficulties the Respondent had had and was pleased to note she had begun treatment and wished the Respondent well with her recovery. The Tribunal also took into account the references provided. However, notwithstanding this, the Tribunal felt that the Respondent’s behaviour had affected the reputation of the profession, so much so that a number of complaints had been made about it. It was vital that solicitors acted professionally and with integrity at all times in order to maintain the confidence and trust placed by the public on members of the profession. The Respondent’s behaviour had brought the profession into disrepute and could not go unpunished. In the unanimous view of the Tribunal, the
8 correct sanction in this case was to impose a suspension from practice for a period of six months starting today.

41. The Tribunal Ordered that the Respondent, Esther Lynn Cunningham of xxx solicitor, be suspended from practice as a solicitor for the period of six months to commence on the 13th day of January 2009 and it further Ordered that she do pay the costs of and incidental to this application and enquiry fixed in the sum of £5,750.00.

Dated this 17th day of April 2009

On behalf of the Tribunal
A H B Holmes

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