Decisions filed recently with the Law Society (which may be subject to appeal)

Roger Patrick Diavewa

Application 12134-2020

Hearing 15 January 2021

Reasons 19 February 2021

The Solicitors Disciplinary Tribunal refused the applicant’s application for revocation of a section 43 order made against him by the respondent on 10 September 2020.

The adjudicator had found that the applicant had: falsely held out, both to his client M and to the Family Court, that the firm Calices solicitors continued to act on behalf of M in relation to Family Court proceedings; dishonestly created a letter dated 7 May 2017 and a statement of facts, in an attempt to mislead the Upper Tribunal in relation to an application for judicial review made on behalf of a client, AU; dishonestly received into his own personal account payments from AU for fees due to the firm; and that the applicant, who was or had been involved in a legal practice but was not a solicitor, had thereby occasioned or been a party to an act or default in relation to a legal practice which involved conduct on his part of such a nature that in the opinion of the Solicitors Regulation Authority it would be undesirable for him to be involved in legal practice in all of the ways mentioned in the order.

On 5 October 2020 the applicant filed an application for a review and revocation of that order.

The SDT was satisfied that there was ample evidence to show that the relevant matters had been considered and weighed by the adjudicator, who had therefore been entitled to reach the conclusions she had.

There was no evidence of bias or pre-determination. The adjudicator’s role was not to investigate but to assess the evidence gathered in the course of that investigation and decide whether or not to make a section 43 order depending on the conclusions drawn from that evidence.

The SDT considered that insofar as there had been a misunderstanding about the timescales for publication, that could not vitiate the section 43 order and did not undermine the basis on which it had been made.

It was therefore appropriate to confirm the order and to refuse the application to revoke it.

The applicant was ordered to pay costs of £3,000.

Robert Alan Downie

Application 12127-2020

Admitted 1997

Hearing 19 January 2021

Reasons 17 February 2021

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

While in practice as a solicitor at and sole equity owner of Bathurst Brown & Downie LLP, the respondent had caused or allowed the firm to make transfers of round sums totalling up to £193,210, from client to office account, all or any of which were unjustified and/or improper transfers, thereby breaching rules 1.2, 6.1, 17.2, 17.3, 17.7, 20.1, 20.3 and 20.6 of the SRA Accounts Rules 2011; principles 2, 4, 6, 7 and 10 of the SRA Principles 2011; and failing to achieve outcomes 1.1 and 1.13 under the SRA Code of Conduct 2011. He had acted dishonestly.

He had caused or allowed an improper payment to be made from client account in the sum of around £204,217.94, thereby creating a minimum cash shortage of equal amount, which was not remedied promptly on discovery or by 30 September 2019, thereby breaching rules 1.2, 6.1, 7.1, 7.2, 20.1 and 20.6 of the Accounts Rules; principles 2, 4, 6 and 10. He had acted recklessly.

He had failed to pay stamp duty land tax to HMRC on behalf of client FK or to account for what he had done with monies paid to him, including for that purpose, adequately or at all, thereby breaching principles 2, 4, 6 and 7.

He had failed to distribute and/or to account, adequately or at all, for the full proceeds of a sale due to be split equally between person CE and client NE, thereby breaching rule 1.2 of the Accounts Rules, and principles 2, 4, 6 and 7.

He had failed to ensure that the firm had in place a designated compliance officer for legal practice and/or compliance officer for finance and administration or to explain such failure to the SRA, adequately or at all, thereby breaching rule 8.5 of the Authorisation Rules, breaching principles 6, 7 and 8, and failing to achieve outcomes 7.2 and 7.3 of the code.

From September 2018 to the intervention into the firm, as a result of the respondent’s failure to appoint, in spite of communications from the applicant, there was no COLP or COFA to monitor the way the respondent operated the firm’s business. As owner of the firm the respondent had benefited directly from the round sum transfers made from client account to office account. His conduct appeared to be planned. Only suspension or strikeoff would be appropriate sanctions where dishonesty had been found proved. The misappropriation of client money would invariably lead to strike-off. No personal mitigation had been offered and there were no exceptional circumstances in the case.

The respondent was ordered to pay costs of £26,359.

Odette Green, Simon John Bishop

Application 12105-2020

Hearing 10-13 November 2020

Reasons 25 February 2021

The SDT ordered that the applicant should consider issuing a rebuke in relation to the first respondent, and that the second respondent (admitted 1974) should be reprimanded.

The first respondent, who was not a solicitor, had been guilty of conduct of such a nature that in the opinion of the applicant it would be undesirable for her to be involved in a legal practice in that she, while employed as a conveyancing manager at Parkinson Wright LLP between February 2014 and October 2016, and while in practice as a residential conveyancing team manager at Thursfields Legal Limited between January 2017 and August 2018, had, while employed by PW and having opened a file for RK in the purchase of Old Baskerville House, failed to provide a client care letter to RK, or to any other individual involved in the transaction, thereby breaching principles 4 and 5.

She had received client instructions from a number of individuals other than RK, without ascertaining exactly who the client was, or first obtaining express authority to receive instructions from other individuals, thereby breaching principles 4 and 5.

She had received and acted upon client instructions provided by her husband, the second respondent, on behalf of the client, without first obtaining express written authority to do so for the client file, thereby breaching principles 4 and 5.

She had allowed the second respondent, who was not an employee of PW, access to the client file, including at their home, thereby breaching principles 4 and 6.

She had caused or allowed the second respondent, from whom she was taking instructions in his capacity as the client’s personal adviser, to review and/or work on the client file, following which she had acted in accordance with the directions issued by the second respondent, including reproducing work and communications drafted by him, and/or sending documents prepared by the second respondent, thereby breaching principles 3, 4, 5 and 6.

She had made no attempt to establish proof of the source of £899,422 which was being proposed by Mr HK for the purchase of the property, thereby breaching regulations

7 and 8 of the Money Laundering Regulations 2007, and principles 3, 6 and 7.

She had failed to ensure that there was sufficient information on the file for a colleague and/or fee-earner to take over the transaction if required, thereby breaching principles 4 and 5.

She had not set out properly the basis for a fee calculation resulting in a later dispute over the same, thereby breaching principles 4 and 5.

Between March 2015 and September 2016, while acting for client C (later client W) in the purchase of two properties, the first respondent had failed to provide a client care letter to Mr HK as a director of client C, thereby breaching principles 4 and 5.

She had failed to undertake appropriate client due diligence (CDD) in respect of any of the prospective purchasers in that transaction, thereby breaching regulation 7 of the 2007 regulations and principles 3 and 7.

She had received and acted upon client instructions provided by the second respondent on behalf of the client, without first obtaining express written authority to do so for the client file, thereby breaching principles 4 and 5.

She had allowed the second respondent, who was not an employee of PW, access to the client file, including at their home, thereby breaching principles 4 and 6.

She had caused or allowed the second respondent, who was not an employee of PW, and from whom she was taking instructions in his capacity as the client’s personal adviser, to review and/or work on the client file, following which she had acted in accordance with the directions issued by the second respondent, including reproducing work and communications drafted by him, and/or sending documents prepared by him, thereby breaching principles 3, 4, 5 and 6.

She had continued with the transaction despite not having undertaken appropriate CDD and/or properly established the source of the deposit funds, thereby breaching regulation 11 of the 2007 regulations, and principles 6 and 7.

In addition to the occasions referred to above, the first respondent had received and acted upon client instructions provided by the second respondent on behalf of the client in respect of other transactions, without first having obtained express written authority to do so for the client file in question, thereby breaching principles 4 and 5.

In addition to the occasions referred to above, the first respondent had allowed the second respondent, who was not an employee of the firms by which she was employed, access to other client files, including at their home, thereby breaching principles 4 and 6.

In addition to the occasions referred to above, the first respondent had caused or allowed the second respondent, who was not an employee of the firm by which she was employed, and from whom she was taking instructions in his capacity as the client’s personal adviser, to review and/or work on various specified client files following which she had acted in accordance with the directions issued by the second respondent, including reproducing work and communications drafted by him, and/or sending documents prepared by him, thereby breaching principles 3, 4, 5 and 6.

In addition to matters referred to above, the first respondent had failed to provide a client care letter in respect of various specified clients and matters, thereby breaching principles 4 and 5.

In addition to the matter referred to above she had failed to undertake appropriate CDD in respect of various specified clients, thereby breaching regulation 7 of the 2007 regulations and principle 7.

Between March 2015 and August 2018, while admitted to the roll but acting as ‘personal business adviser’ for one or more clients involved in property transactions, the second respondent had provided instructions on behalf of those clients to his wife, the first respondent, without ensuring that express written authority to do so had been provided to the first respondent or her firm, thereby breaching principle 6.

He had accessed the first respondent’s client files when he was not an employee of the firm by which the first respondent was employed, when there was no written authority in place from his client to permit him to access those files, and no permission from the firm to do so, thereby breaching principle 6.

He had undertaken reviews and/or work on the first respondent’s client files, including preparing and/or drafting documents and communications, and issuing directions to the first respondent to carry out tasks, when he was not an employee of the firm by which the first respondent was employed, and when there was no permission from the firm and/or his client to work in a legal capacity, and in respect of client C/W’s purchase of a property at a time when he was engaged by the solicitors for the vendors as a consultant, thereby breaching principles 6 and 7.

The SDT considered that the culpability of the respondents was moderately low.

No harm had been caused to any clients or others involved in the various transactions. The firms employing the first respondent had been harmed to some extent by the lack of knowledge of the extent of the second respondent’s role in the client matters, but that harm was moderately low.

The second respondent should have been more alert to the risks of the working relationship and the extent of his involvement on the client legal files. Both respondents had genuine insight into their misconduct and their stated intentions about learning from and avoiding any similar experience were credible.

The second respondent should be reprimanded for the misconduct found proved. As the first respondent was not admitted as a solicitor, the SDT was not empowered to reprimand her. It therefore determined to direct that the applicant consider the imposition of a rebuke under its own powers.

The respondents were each ordered to pay costs of £30,000 on a joint and several basis.