SDT: Franklyn Michael Garvey
The SDT ordered that the respondent, of Tubbs & Co, 106 Victoria Road, Scarborough, North Yorkshire YO11 1SL, should pay a fine of £20,000.
- Application 10513-2010
- Admitted 1966
- Hearing 26 January 2011
- reasons 25 February 2011
Contrary to rule 1(a) (c) and (d) of the Solicitors Practice Rules 1990 and principle 15.05 of the Guide to Professional Conduct of Solicitors 1999, the respondent had failed to ensure that a client, Miss EK, was advised to take independent advice as to the legacies that she intended to leave the respondent and members of his family in her will; the respondent had failed to ensure that a client, Miss EK, was advised to take independent advice in respect of the terms of a deed of variation of the will of Miss AMK under which the respondent and members of his family benefited; and the respondent had acted or continued to act for Miss EK when there was a conflict between her interests and his interests and those of his family.
The SDT had been made aware in the course of the proceedings that Miss EK’s estate had been over £800,000, so the benefit to the respondent and his family from the will and deed of variation was significant, running into several hundred thousands of pounds.
However, the SDT would not, indeed should not, link the penalty considered to the size of the estate. Rather, it had to consider the appropriate penalty in the light of the breaches that had occurred and had been admitted.
The SDT was concerned that the respondent had apparently not been aware of the principle, which should have been obvious to any solicitor in practice at the relevant time, that wherever a client proposed to leave a significant gift to a solicitor under a will, that client must be advised to take independent legal advice, and if that advice was not taken, the solicitor should not continue to act.
The SDT noted that there had been a close relationship between the respondent and his family and Miss EK and her sister.
However, Miss EK had been a client, and had been billed as such and so should have been afforded the same protection as any other client.
The 1990 Rules and the 1999 Guide were intended to protect the public and indeed solicitors.
The SDT was concerned that the respondent had not admitted promptly, in 2006 when the issues were first raised in correspondence, that he had acted in breach of the Rules and therefore in an inappropriate way.
It appeared that the respondent had not checked the Rules and reflected on his actions before responding to correspondence from the solicitors acting for certain of Miss EK’s relatives.
The SDT was fully aware that there had been no allegation of dishonesty or undue influence over Miss EK.
However, the breach was serious.
It was appropriate to impose a financial penalty and that financial penalty should be sufficiently large to send a clear message to members of the profession that rules designed to protect the public had to be followed.
The respondent was ordered to pay costs of £9,643.