Better Late than Never
May 31 2019
The recent decisions by the FCA to fine UBS and Goldman Sachs £27.6 million and £34.3 million for transaction reporting failures going back to November 2007 and HBOS for its failure to inform the regulator of its suspicions that fraud was occurring in its Impaired Assets team – again in 2007 – is a reminder that the failings of long ago still have bite. All three firms will doubtless be relieved to put these investigations, finally, behind them. Systems changes will have been made, extensive remediation measures taken, training given and few, if any, of the people involved will still be in the organisations. Sighs of relief all round. After all, the past is another country. They did things differently then.
And yet, 12 years from the events in question to enforcement is a generation, probably two, in City terms. There will be people now starting their banking careers who were in short trousers when these events were happening. It will be all too easy for them to think that there is little for them to learn from what went on in these cases. After all, haven’t all the lessons already been learnt? They would be wrong.
For those training the next generation, the challenge is to make the lessons to be learnt from these past cases real for people working today – if the same dismal cycle is not to be repeated in future. Perhaps too the FCA might realise that the pursuit of perfection in their investigations risks making their ultimate outcomes little more than historical accounts of past misdeeds rather than a quick sharp reminder to those involved and their contemporaries of the perils of not taking their obligations seriously. Delaying justice for too long risks not just denying it but blunting its wider impact.
To Discipline or Not?
April 30 2019
The recent decision of the Solicitors’ Regulatory Authority to strike off Emily Scott, a junior solicitor, for being involved in misconduct while a trainee, only belatedly raising her concerns as a whistleblower after she left, raises, albeit tangentially, the difficult question of when – or if – it is ever right to discipline an employee for misconduct if they are also a whistleblower about that misconduct.
In this case, Ms Scott felt unable to report clients being defrauded by her firm while she was a trainee. She was involved in perpetrating the frauds on the instructions of the partners, the Disciplinary Tribunal finding her conduct to have been “deliberate, calculated and repeated”. It was only after she had left, some two years after the conduct in question, that she reported the fraud to the SRA who then took action against the partners of her firm and, controversially, her. The Tribunal reached its decision on Ms Scott despite accepting that she had been young, a trainee and had been “deceived, pressured, bullied and manipulated” by the partners into both carrying out the fraud and covering it up. The fact that she did not use the confidential route open to her by reporting the matter to the SRA was a factor, as was the fact that part of the conduct involved misleading the regulator when it sought answers.
Ms Scott feels that she has been punished for – eventually – doing the right thing, with the Tribunal refusing to accept her mitigation, even while expressing sympathy for her. It is easy to feel sorry for her: in her first job, anxious to impress, worried about her prospects if she refused or left and feeling bullied. In such circumstances, it is not hard to see how someone can justify to themselves what they are doing and convince themselves that they are still an honest person despite doing dishonest things.
Still, the SRA took the view that a solicitor, even a trainee one, is rightly held to a very high standard and there can be no excuse for dishonesty. Our system of justice depends on its practitioners being utterly trustworthy.
Will such a decision nonetheless lead to unintended consequences? Misconduct is often perpetrated by the most junior employees being made to do something wrong by superiors who seek to keep their hands clean. So it will often be those most involved who have the best knowledge of misconduct which should be reported and stopped. If their own careers will be lost – as Ms Scott’s has been – will this encourage those with the relevant knowledge to speak up? The SRA is, understandably, reviewing its rules in light of this case in order to ensure that it gets that balance right.
Ms Scott was not retaliated against by her employers for being a whistleblower. She was disciplined by a regulatory authority, which has different and wider concerns. Nonetheless, all employers will likely come across whistleblowers who have themselves been involved in bad behaviour and who may seek to protect themselves from the consequences of such bad behaviour by blowing the whistle, sometimes at a late stage when an investigation has already started – or is about to. Ensuring that a whistleblower is not retaliated for speaking up but is not also given a free pass against being disciplined for misconduct requires the most careful of judgments.
But the moral – however harsh it may seem – is that, ultimately, a professional – or someone aspiring to be one – is responsible for their own actions, that they need to do the right thing even if this prejudices their personal position and that acting dishonestly but saying to yourself “I’m not a dishonest person” may be comforting but is still a dangerous self-deception. It is our actions that make us what we are.
Similar considerations arose in the case of Dr Bawa-Garba, a paediatrician convicted of manslaughter over the death of a young child from sepsis, suspended from practice, then struck off and recently reinstated. There are, however, some obvious differences between the two cases:-
- The doctor was open about – and admitted – her mistakes immediately and was convicted in court. The initial medical disciplinary panel felt, however, that it was not just her mistakes which led to the child’s death and that these wider failures were a reason why her additional punishment should be suspension, during which she could do the necessary training to learn from those mistakes and improve her professional competence.
- It was the General Medical Council which sought to strike her off on the basis that her standards as a doctor were so far below those to be expected that she should not be allowed to practise.
- The concern within the medical community at this decision was that this would lead to the wrong consequences, both for doctors and patients. Criminalising individual mistakes would be more likely to lead to cover ups and a failure to learn from problems. It would have a chilling effect on health professionals’ willingness to be candid about errors and thereby learn what to do better next time. There was also significant concern that the wider failings which had been identified – lack of staff, poor supervision, inadequate resources, poor note-keeping by others – were being ignored in favour of placing the blame, unfairly, all on one individual.
- Most obviously, the consequences of the wrongful behaviour were much more serious in the doctor’s case than in Ms Scott’s. Yet it is Ms Scott who has lost her career and the doctor who will continue to practice.
Unfair? Superficially maybe. Is gross incompetence in a doctor less bad than dishonesty in a lawyer? Whatever the doctor’s failings, she was not dishonest; indeed, her very openness about her failings made it easier for her to be convicted and disciplined. A lack of knowledge or competence is something which is capable of being remedied.
Whereas integrity and honesty and the courage to say no when asked to do the wrong thing go to the heart of what it means to be a lawyer. If they are missing or capable of being so easily subverted, what else is there?
And while the work culture in which a person operates matters, often significantly, and frequently needs improving, it should never be an excuse for behaving without integrity.
March 31 2019
In the week in which Lyft, a company which has never made a profit, whose losses rose by 32% to nearly one billion in 2018 and which, according to its management, will not make a profit in the near-term, was listed with an initial valuation of $2.3 billion with its shares rising by 8.7% on the first day (giving it a market capitalisation of $22.4 billion, almost as much as Chrysler), we learnt a bit more about two other former stars of the business world.
First, London Capital & Finance (LCF). Perhaps not a star but starry enough – at least superficially – to persuade about 12,000 unsophisticated ordinary savers to put £230 million of their savings into fixed-rate bonds (which they thought eligible for ISAs) providing returns well above those available elsewhere. In reality, the bonds were high risk and not eligible for ISAs, were not regulated investments and the money went into a number of ventures run by persons connected to those behind LCF. The administrators are now, inevitably, probing what happened and where the money went. But this week investors were told that the administrators were having difficulty locating the assets allegedly acquired with the money, the chances of there being any recovery were low and, to add insult to injury, while investors lost money “through no fault of their own”, there was no basis for any compensation from either the FCA or the FSCS. The investors fell into the gaps between firms regulated to provide financial advice, which LCF was, and firms regulated to sell bonds, which LCF was not.
The moral of this sad story is an old one: if something looks too good to be true, stay away.
Still, those savers might well wonder what one of the FCA’s statutory objectives – protecting consumers – actually means when LCF was able to operate in the way it did in full view of the regulators without anyone taking any effective action to protect those consumers. The plethora of inquiries now taking place – by administrators, the SFO, the National Audit Office and possibly also the Financial Reporting Council – are not likely to provide those savers with much comfort.
Now to Theranos– a company which no longer exists but which is having a lucrative after-life in a book, documentary, podcast and rumoured Hollywood film. Its story is now well-known: a student leaves Stanford with a brilliant idea which will revolutionize health care (no more nasty needles taking blood – just a teeny pinprick), raises oodles and oodles of money, has a Board consisting of the great and the good (Dr Kissinger, George Schultz), appears on stage with Bill Clinton, is co-opted onto an advisory panel by President Obama, and is fêted as one of the first and youngest and prettiest female Silicon Valley billionaires. What could possibly go wrong?
Well, pretty much the most important thing: the product Theranos was selling did not work. Having an idea is great. Selling an idea knowing that the reality does not match it: not so great. Criminal charges have been laid. We will see whether this was self-delusion and a failed business or something very much worse. Still, one of the striking facts which has come out is that a lot of very experienced, very rich business people – people as far removed from ordinary savers as it is possible to be – failed to do the most elementary due diligence or ask basic questions, not even for an audited financial statement.
Maybe they were happy to take a risk without more. Or maybe, like those hopeful savers putting their money and hopes into LCF, they believed in what they hoped would be true, they believed the story, ignored the facts and/or didn’t ask obvious questions. Any similarities to investors in Lyft are, one hopes, purely coincidental.