Using a right to be forgotten to remove links to Solicitors Disciplinary Tribunal decisions
Solicitors might find themselves the subject of a disciplinary hearing before the Solicitors Disciplinary Tribunal (SDT). Not necessarily for something wrong they did but rather because of joint liability they have to other lawyers or workers in their law firms. Removing links to SDT decisions from Google is likely to be a massive challenge.
The standard of conduct expected of a solicitor is the highest of all other professions in the country but the consequences of being disciplined by the SDT could be far reaching when it comes to Google's standards of conduct which are set by Google.
Google treats professional people much harsher than ordinary people when it comes to right to be forgotten applications. Google tends to cite public interest when it rejects right to be forgotten applications made by solicitors who ask Google to remove links to STD decisions. It is however, possible to succeed with an application for a right to be forgotten for professional people.
Our client L.M was a solicitor. In 2006, he was a partner in a law firm specialising in conveyancing. His main role within the firm was to network and to generate new business. He had little involvement with the day to day casework.
In 2010, he was arrested, together with another solicitor in the firm and was eventually charged with mortgage fraud. The charges related to money, which unlawfully went through a fictitious solicitor’s client account. The fraud was of large scale and as such it attracted media attention. There were articles relating to it in the mainstream media as well as in the Law Society Gazette and in other legal publications.
The criminal trial-aquittal
In 2012 L.M stood trial at the Crown Court. He was eventually acquitted of all charges after he was able to successfully demonstrate to the jury that he had played no part in the mortgage fraud. The jury acquitted him unanimously.
The Solicitors Regulation Authority disciplinary hearing
Despite his acquittal, The Solicitors Regulation Authority (SRA), the body which regulates solicitors in England and Wales, had started an investigation and eventually decided to charge L.M with a number of offences relating to his alleged involvement with the fraud.
He was therefore required to appear before the Solicitors Disciplinary Tribunal (SDT). The SDT adjudicates upon alleged breaches of the rules and regulations applicable to solicitors and their firms and has the power to suspend solicitors from practice and even to revoke their practising certificate. In 2013, the SDT found L.M guilty of breaching solicitors account rules. He was suspended from practising as a solicitor for 3 years and was not allowed to return to practice without the specific permission of the SDT.
The publication of the SDT decision
The Solicitors Disciplinary Tribunal published its decision on the Solicitors Regulation Authority and on the Law Society Gazette websites. Anyone who searched for L.M’s name could find reports about his trial, about his disciplinary hearing before the SDT and about his suspension from practice. Nearly all the publications (more than a dozen), gave the impression that L.M was a dishonest solicitor and that he had committed, or at least took part, in a serious fraud.
There was very little visible information about his acquittal in the Crown Court, as this aspect of his trial wasn't reported in the mainstream press. The SDT’s decision was complex as it held L.M liable just by virtue of being a partner in a firm where one of the other partners had committed fraud.
The impact of the Google links
To make ends meet following his arrest, L.M retrained himself as a teacher and managed to work on a part time basis but hadn't been able to sustain a job because of the adverse publications.
Eventually, to be able to support himself and his family, he had no choice but to leave the country and go to work in Africa as an English teacher, leaving his wife and 3 young children behind. This had tremendous effect on his well-being and on the well-being of his wife and young children.
What happens with the Google links of an SDT decision after you have your practicing certificate restored
In 2016, L.M made an application to the SRA to have his practising certificate restored. His application was granted, and he was now allowed to practice again as a solicitor, subject to conditions. In 2018, the SRA agreed to remove all restrictions from his practising certificate. Still, however, on a search of L.M’s name on Google, Yahoo and Bing, there were dozens of articles and references to his mortgage fraud trial and to the SDT hearings.
This created a misleading and false impression of him and prevented him from obtaining employment in England. When L.M approached us, he was a broken man, desperate for support in clearing up the internet of traces of his past. Previously he was told that due to the nature of his profession, this would be impossible to achieve. Despite us making no promises, L.M had invested his last savings in a final attempt to clear the internet off the results. He understood that without this, he will never be able to lead a normal family or work life again.
A successful outcome for a particularly challenging right to be forgotten project
This project went on for nearly 18 months. To help L.M, we carried it out mostly on a fixed fee basis. It was one of the longest projects this firm has carried out but the wait was worthwhile for L.M because it resulted in an amazing outcome for him, far better than expected. We managed to have all the references to his trial and the SDT hearings removed either from source or from search results. Effectively he had all references to his trial removed from Google.
First step: three articles, on different news websites which published misleading information had to go first. They created the false impression that L.M had a criminal conviction, that he was guilty of mortgage fraud and that he was unfit to practice as a solicitor. We served GDPR notices on the website operators objecting to the publications. This followed, in some of the cases, telephone conferences with the news editors, whom we persuaded to completely delete the entire articles from their websites.
Second step: we served a GDPR Notices on the SRA. Following a number of legal correspondence between our specialist Data Protection solicitors and the Regulatory Bodies lawyer and the SRA, the SRA agreed to take steps to prevent search engines from crawling the webpages where its decisions concerning L.M were published. It meant that details of the decisions had now become only available upon a search on the SRA website special section where the SRA publishes disciplinary decisions. Google and other search engines were no longer able to find and list this information on their search engine.
Third step: we served GDPR Notices on three other websites, including MediaNett, and the Law Society Gazette, both of which responded positively.
Fourth step: we served other GDPR Notices on various websites, 4 of which agreed to delete articles relating to L.M.
Fifth step: we served GDPR Notices on Google, Bing and Yahoo, which were supported by some of our correspondence with the SRA. All the search engines agreed to de-list all the remaining articles relating to L.M. One particular difficulty was a PDF document of the STD’s latest decision, allowing L.M to regain his practising certificate. Because the document had references to his previous trial and to the initial disciplinary hearing, we wanted this document to be de-listed form search engines too. We were eventually successful in achieving this outcome.
Sixth step: we wrote a number of letters to Companies House, Company Check and Check Company to request that they either delete references to L.M's involvement in a now dissolved law firm or prevent Google and other search engines from accessing this information. We were successful in relation to all of the above.
This was an extremely challenging project. The SRA is a regulatory body, which is under statutory duty to protect the public. It means that it has to publish SDT’s decisions and make them available for the public to view. This was the main legal argument that was initially argued by the SRA lawyers in relation to our GDPR Notice.
However, we were able to successfully argue back that the SRA was in fact only under legal obligation to publish SDT decisions on its own website. There wasn't an obligation on the SRA to make those decisions searchable on Google or on other internet search engines.
In fact, it could be the case that the SRA was in fact breaching its regulatory duties by making those decisions available for search on internet search engines. There was not any specific law or regulation that permitted it to do this.
We successfully argued that the public interest was served by people being able to go to the SRA website and search there for a solicitor's name, and then find out if the solicitor had ever been disciplined. No more and no less. Making those decisions available on Google and on other search engines’ results was outside the duty of the SRA.
I'm very pleased that we managed to come to an agreement with the SRA that on one hand, allows the SRA to fulfil its own statutory obligations whilst at the same time, avoid unnecessary prejudice to the discipline solicitor. It is these creative solutions that my firm is very good at, as a matter of principle.
It seems the SRA has now accepted that the SDT decisions should not be searchable on Google, Bing and Yahoo searches. It is my understanding that since this case, the SRA had changed its policy, and all SDT decisions are only available for search on the SRA website, and are not appearing automatically and being indexed by search engines, in terms of strategy.
This was an interesting case because we had to first reach an agreement with the SRA. We were then able to go to other websites and to search engines with the “authority” of the SRA to help us make our case. I know that the outcome of this project had clearly exceeded our client’s expectations and also my own personal expectations.
I was very determined to find a way to help L.M and I'm very glad that our team managed to work out a solution that eventually proved to be beneficial not only to him but to other people in his situation, which might have never heard about us.