Don’t Claim Twice, Follow this Sage Advice

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Don’t Claim Twice, Follow this Sage Advice!

On 24th February 2022 news emerged of a Solicitors Disciplinary Tribunal ruling striking off a solicitor and bringing the curtain down on an illustrious forty-three year career.

This judgment stands as a warning to legal professionals to avoid asking clients to pay money personally to the legal professional’s personal private bank account whilst simultaneously requesting a client to falsely represent that the money was being gifted.

The solicitor admitted to three counts of dishonesty which were discovered whilst the firm’s Compliance Department prepared for a Legal Aid Agency (LAA) audit. The file piqued their interest due to a very interesting email from the solicitor to the client dated 30th September 2018 which contained a highly unusual request. It read, ‘As agreed, cost of travel is £100 – please send me a cheque for this payable to ‘M GARSTANG’. The client eventually paid the £100 via bank transfer to the solicitor’s personal private bank account.

The firm alerted the Solicitors Regulation Authority to the allegations during an investigation by the firm’s compliance department on 23rd May 2019. The SRA independently investigated the solicitor’s conduct. In order to gather further information, it sent an email to the client dated 26th February 2020 asking questions about what to his knowledge the £100 payment related to. On 3rd March 2020 his response was concerning as he claimed this payment was for the solicitor’s time and travel expenses. He was apparently unaware that the Legal Aid Agency covered these costs.

In support of his answers the client provided a written witness statement to the Regulator on 22nd July 2020 consistently repeating his concerns over the payment and his understanding that it related to time and travel expenses. He also confirmed in writing that the solicitor seemingly instigated the transaction by suggesting the payment should be made and he was clear that the payment was not intended to be a gift or tip.

The client also alleged that a telephone conversation had taken place in early 2019 between himself and the solicitor during which the solicitor had dictated the content of a letter directly to the client shockingly asking him to falsely state that the £100 transferred into his personal private bank account was not a payment for his time and travel expenses at all but was described as a ‘thank you gift’. The client described the conversation as ‘strange’.

All legal professionals working under such payment schemes should check what payments are covered. Here the SDT found that the solicitor had breached the Standard Crime Contract 2017 and the Specification Document by claiming the respective payment directly from the client and misrepresenting that the respective payments were not classified as ‘Contract Work’. The Tribunal confirmed that the travel expenses and time charges are classed as disbursements for the purposes of the contractual provisions and the solicitor was not exempt. Paragraph 8.44 was very clear and the solicitor was found to have simultaneously acted on a private paying basis and under the Standard Crime contractual provisions. The solicitor agreed to pay Solicitor Regulation costs in the amount of £16,950 and be struck off the Roll.

Lawyers should be keeping their powder dry with the regulator by carefully reviewing the standard contractual terms to understand what the contractual provisions cover and the conditions for claiming the payment of disbursements for travel expenses and time charges. The contract may already provide for such charges. Legal professionals should avoid approaching clients directly for payment if the contract specifically bars this, not be encouraging clients to send payment to their own personal private bank account whilst misrepresenting it as a gift and avoid colluding with clientsto dictate the content of such misleading correspondence.

The Legists Content Team

Assessing Firms

#clyde&co #beale&co #DACBeachcroftLLP #HerbertSmithFreehills #HFW #HoganLovellsLLP #Kennedys #MayerBrownLLP #NortonRoseFulbright #RPC #Simmons&Simmons #TaylorWessingLLP

This Article was Written Using the Following Sources

[1] Solicitors Regulation Authority Ltd and Michael Edward Garstang (17 January 2022 - 12269.2021.Garstang.pdf (solicitorstribunal.org.uk)

[2] Principle 2 SRA Principles

[3] Principle 3 SRA Principles

[4] Principle 6 SRA Principles

[5] Section 6 Human Rights Act 1998

[6] Article 6 European Convention on Human Rights and Fundamental Freedoms 1950

[7] Article 8 European Convention on Human Rights and Fundamental Freedoms 1950

[8] Regulation 8 Criminal Legal Aid (Remuneration) Regulations 2013

[9] Standard Crime Contract 2017 - Standard Crime Contract 2017 - GOV.UK (www.gov.uk)

[10] Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin)

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