A criminal defence solicitor sacked after accepting £150 from his client’s father has successfully appealed to have his case re-heard.
Paul Greenberg was a partner with Liverpool firm DPP Law when he received the money through his car window. He later argued that he genuinely believed it to be a gift. He had received £300 a few months earlier from the same person and after seeking advice then, was assured by his firm and the Law Society’s ethics helpline that he could accept it.
Greenberg was dismissed over the second payment, with his firm saying it was a top-up and broke professional rules, breaching the legal aid contract and putting that contract at risk. The employment tribunal found the dismissal to be fair, but on appeal Greenberg argued the case against him was ‘circumstantial and inferential’. He said the Legal Aid Agency had not expressed a view about the payment and asked the appeal tribunal to consider whether the two partners who dismissed him had acted reasonably.
Lord Justice Males, sitting in Greenberg v DPP Law Ltd, said the employment tribunal’s decision was not fundamentally flawed but did take a ‘wrong turn’. He remitted the case for re-hearing before a different judge, saying it was important that both parties have confidence in the process to achieve finality in the case.
The appeal heard that Greenberg was a solicitor with 20 years’ experience and was effectively equity partner in the firm. He took over the defence of a legally-aided 18-year-old charged with grievous bodily harm with intent, and together with a barrister secured the defendant bail. When the teenager’s father gave him an envelope with the £300 – the barrister had been given £480 and later returned it – he emailed his firm’s compliance officer. The officer replied: ‘I’ll leave it with your conscience’. The ethics helpline told him the payment was not an issue so long as Greenberg remained impartial throughout.
The second payment came after Greenberg went to a pub to interview witnesses and the father dropped cash through his window. He was suspended following an email from the Legal Aid Agency, but stressed he had never asked for any money and at all times perceived the payments to be gifts. He rejected speculation he may have been ‘topping up’ his fees in a legally aided case.
Nevertheless, the firm found him guilty of gross misconduct and he was dismissed without notice. In an internal appeal, Greenberg said his firm’s initial response had been ‘ambiguous’ and referred to the lack of formal guidelines. He asserted that dismissal was a disproportionate response to an alleged lack of judgment, particularly when he had reported both gifts to co-directors, and he alleged that there was ‘another agenda’ at play. It was noted in the appeal tribunal that the SRA took no further action against Greenberg and closed its investigation into him. The Legal Aid Agency also found no breach of contract and lifted all sanctions against him.
At the employment tribunal, Greenberg said the true reason for dismissal was other partners’ personal animosity and business differences with him. The tribunal did not find this proven and accepted he was dismissed because of his conduct in relation to the second payment.
The tribunal rejected the contention that the firm should have spoken to the father, and rejected opposition to a fellow director having handled the disciplinary process. The tribunal did consider it wrong not to delay Greenberg’s disciplinary hearing, given his ill health and his solicitors’ request for more time to take instructions, but rejected the argument that the overall process was unfair.
Lord Justice Males said there was not an issue with Greenberg having been had a fair opportunity to put forward his case, and his evidence, in response to the charges. He also disagreed that it was unfair for the firm not to have interviewed the father who made the payments.
But the judge noted that the tribunal had no notes or understanding in relation to how the firm’s partners reached their conclusions. After some ‘anxious consideration’ he ruled the basis for upholding the dismissal could not stand. The tribunal, he said, had set out why it considered the firm could have fairly dismissed Greenberg, but that was not a sufficient basis on which to uphold the actual dismissal. The tribunal failed to make specific and detailed findings about whatever may or may not have been the firm’s more detailed thought or reasoning processes