Decisions

The Solicitors Disciplinary Tribunal ordered that the respondent should be struck off the roll.

While employed by Atherton Godfrey as a solicitor, he had caused the transfer of client money to firm B&B without the clients’ consent and had falsified an email from firm B&B to suggest that the money related to a property transaction involving those clients, thereby breaching rules 1.2(c) and 20.1 of the Solicitors Accounts Rules 2011, and principles 2, 4, 5, 6 and 10 of the SRA Principles 2011.

In relation to another property transaction, he had misappropriated money from one client and caused the transfer of client money belonging to two other clients to firm B without the clients’ consent, thereby breaching rules 1.2(c), 14.1 and 20.1 of the 2011 Rules, and principles 2, 4, 5, 6 and 10.

He had created, or caused to be created, a false attendance note, thereby breaching principles 2, 4, 5, 6 and 10.

He had created, or caused to be created, a false client care letter, thereby breaching principles 2, 4, 5, 6 and 10.

He had caused the transfer of client money to another person without the clients’ consent thereby breaching rule 20.1 of the 2011 Rules, and principles 2, 4, 5, 6 and 10.

He had created, or caused to be created, a false invoice for work which had not been carried out, thereby breaching principles 2, 4, 5, 6 and 10.

Dishonesty was found proved in respect of all the above allegations.

Multiple allegations of dishonesty had been proved and there were no apparent exceptional circumstances. Any lesser sanction than strike-off would be inappropriate.

The respondent was ordered to pay costs of £10,000, such order not to be enforced without leave of the SDT.

[The tribunal’s decision dated 21 December 2022 was subject to appeal to the High Court (Administrative Court) by the applicant. On 13 July 2023 the appeal was heard and on 31 August 2023 judgment was handed down, with the tribunal’s first instance decision, as set out below at paragraph 8.16 in relation to the anonymisation of the respondent’s clients, being successfully appealed by the Solicitors Regulation Authority Limited.]

The SDT ordered that the respondent be struck off the roll.

The respondent, who was the managing partner at Harold Benjamin Solicitors, had breached principles 2, 3 and 6 of the SRA Principles 2011, in that during the conveyancing of a residential property (No.1), of which his brother JF and sister-in-law SF were then the owners and vendors, he had: (i) encouraged JF to lie about the history of complaints and disputes with the owners of the neighbouring property (No.2); (ii) made suggestions for responses in the relevant sections of the Sellers Property Information Form (SPIF) which he knew to be false and misleading, intending that JF and SF would adopt those suggestions in the final version of the SPIF sent to the purchasers (the applicants); (iii) deliberately refrained from making his conveyancing colleague aware of the history of complaints, disputes and associated correspondence with No.2, thereby causing or allowing the applicants to be misled about those matters; and (iv) had permitted his firm to continue to act in the transaction despite knowing that the applicants were being misled. The applicants duly purchased No 1 and subsequently encountered difficulties with the owners of No 2.

As a result of the problems encountered by the applicants, the matter had been referred to the SRA and had become the subject of civil litigation against the firm, which was ultimately settled. The respondent had breached principle 7 and had failed to achieve outcome 10.6 of the SRA Code of Conduct 2011 by not dealing with the SRA in an open and co-operative manner.

Further, in the course of the applicants’ civil claim against the firm, the respondent had breached principles 1, 2 and 6 and had failed to achieve outcomes 5.1 and 5.4 by falsely denying his earlier dishonesty during the conveyancing of No.1.

The respondent’s motivation for his misconduct was to assist his brother in selling the property. The dishonesty in relation to the SRA and in the civil litigation was motivated by a desire to protect himself.

The respondent’s actions had had a significant impact on the applicants’ enjoyment of their property and had had a negative impact on the firm, which had faced civil proceedings as a result of what had taken place. The harm caused to the reputation of the profession by the respondent’s actions was significant.

The usual sanction where misconduct included dishonesty would be a strike-off. The circumstances in which such a sanction was not imposed were exceptional, described in Sharma as ‘a small residual category where striking off will be a disproportionate sentence in all the circumstances…’.

While it was accepted that the respondent would not have acted as he had if JF not been his brother, the prolonged, wide-ranging and planned nature of the misconduct meant that the circumstances did not come within the ‘small residual category’ of cases where a strike-off could be avoided.

The only appropriate sanction was that the respondent should be struck off the roll.

The respondent was ordered to pay the applicant’s costs of £29,750.

The SDT ordered that the respondent should be struck off the roll.

While in practice as a partner/owner manager at the firm, the respondent had misappropriated estate monies on the matters of: (i) OH in the sum of £100,000; and (ii) RH in the sum of £100,000, causing a shortage on client account in the total sum of £200,000 which he had failed to replace promptly, thereby breaching principles 2, 6 and 10 of the SRA Principles 2011, and rules 7.1 and 20.1 of the SRA Accounts Rules 2011.

He had overcharged on the estates of: (a) OH – between 3 February 2019 and 3 May 2019 – an overcharge of £62,305.38; (b) RH – between 2018 and 2019 – an overcharge of £83,238.24; (c) EB – between 2016 and 2018 – an overcharge of £26,028.51; (d) JM – between 2019 and 2020 an overcharge of £21,540.96; (e) JTW – between 2017 and 2018 an overcharge of £3,756.80 and (f) AMB – between 2017 and 2019 an overcharge of £1,487.65, thereby insofar as such conduct had taken place on or after 9 November 2016 but before 25 November 2019, acting in breach of principles 2, 6 and 10 of the 2011 Principles, and insofar as such conduct had taken place on or after 25 November 2019, acting in breach of principles 2, 4 and 5 of the 2019 Principles, and paragraph 4.2 of the Code of Conduct for Solicitors, RELs and RFLs 2019.

Further, where the conduct had taken place before 25 November 2019, the respondent’s conduct was dishonest.

The parties had invited the SDT to deal with the allegations against the respondent in accordance with a statement of agreed facts and outcome.

At the heart of the allegation was misappropriation of client monies and overcharging. The victims were the dead and their beneficiaries. A solicitor handling such work was entrusted by those who could no longer speak for themselves to carry out their final wishes with professionalism and care and not for the purpose of unwarranted self-enrichment.

Irrespective of experience and longevity in the profession there could be no place within it for those who abused the trust placed in them.

Given the admission of dishonesty and the absence of exceptional circumstances the only appropriate and proportionate sanction was to strike the respondent’s name from the roll.

The respondent was ordered to pay costs of £1,000.

The SDT ordered that the respondent should be suspended from practice as a solicitor for three months from 25 August 2023.

By making an application for probate for reward in December 2018, the respondent had conducted reserved legal activity when not permitted to do so, thereby breaching principles 2, 4 and 6 of the SRA Principles 2011.

From an unknown date after 28 December 2016, the respondent had been practising as a solicitor while not authorised to do so, thereby breaching principles 2, 4 and 6 of the SRA Principles 2011, and principles 2, 5 and 7 of the SRA Principles 2019.

The respondent had also breached rule 10.1 of the SRA Practice Framework Rules 2011, and rules 10.1 and 10.2 of the SRA Authorisation of Individuals Regulations 2019.

The respondent had failed to pay client money promptly into an approved and authorised client account, thereby  breaching principles 6 and 10 of the SRA Principles 2011, and principles 2 and 7 of the SRA Principles 2019.

The respondent had also breached rule 14.1 of the Solicitors Accounts Rules 2011, and rule 2.3 of the Solicitors Accounts Rules 2019 by not ensuring that client money was paid into a client account.

The parties had invited the SDT to deal with the allegations against the respondent in accordance with a statement of agreed facts.

She had practised as a solicitor outside the practice framework requirements. Her conduct was such that, as admitted, she had failed to act in her clients’ best interests or to protect their monies and assets, and had also failed to act with integrity.

There was a need to protect both the public and the reputation of the profession from future harm by the respondent. A short suspension from practice was an appropriate and proportionate sanction. The parties had proposed a sanction of a suspension from practice for three months.

The proposed sanction was appropriate and proportionate to the admitted misconduct. Accordingly, the SDT approved the proposed sanction.

The respondent was ordered to pay costs of £16,000.

The SDT ordered that the respondent should pay a fine of £25,000.

While in practice as a solicitor, the respondent had been convicted at Swindon Magistrates’ Court of three offences of sexual assault, contrary to section 3 of the Sexual Offences Act 2003, for which he had been sentenced to a nine-month community order with up to 20 days of rehabilitation activity and a fine of £300 for each offence, and further ordered to pay a victim surcharge of £95 and to contribute to the prosecution costs in the sum of £85.

The respondent had admitted that by reason of his conviction his conduct had lacked integrity and also amounted to a breach of the requirement to behave in a way which maintained the trust placed by the public in him, the profession and in the provision of legal services (principles 5 and 2 of the SRA Principles 2019).

The two victims had set out in their respective victim impact statements the shock of the incident and the lingering after-effects. The SDT recognised the trauma they had experienced and in no way sought to diminish the sense of damage they felt. That said, the Crown Prosecution Service had placed the respondent’s actions within the lowest range of this type of offending and the magistrates had retained jurisdiction to deal with the matter instead of committing the respondent to the Crown court for sentence. In the event, the magistrates had imposed the most minimal sentence the circumstances had permitted.

However, the SDT also recognised that its function was different to that of the magistrates’ court in that it was concerned solely with a matter of professional misconduct, and that criminal convictions for sexual assault could only be described within the present context as nothing less than very serious.

While noting that the criminal offences were intrinsically very serious, the SDT had decided that given all the circumstances it had heard, to strike the respondent from the roll would be disproportionately severe.

Having weighed up all the factors in the case, including the distress caused to the victims, the SDT had determined that a fine in the mid-range of Level 4 of the Indicative Fine Bands for conduct assessed as very serious would be a fair and proportionate sanction.

The respondent was ordered to pay costs of £3,600.