Solicitor fined £305,000 by SDT was motivated by “desire to help”
Mr Harvie prepared Mrs S’s will and was an executor
Nigel Harvie, the solicitor fined a record £305,000 by the Solicitors Disciplinary Tribunal (SDT) last month, argued that he was motivated by a “desire to help”, it has emerged.
Mr Harvie took control of a vulnerable old woman’s house in return for paying her care and living expenses, in what the tribunal said was a serious breach of trust. The previous highest fine for a solicitor was £40,000.
In the newly published full text of its judgment, the tribunal, chaired by former Law Society council member Richard Hegarty, said: “The general public would be horrified by what had occurred.”
The tribunal went on: “A senior solicitor took unfair advantage of a vulnerable and very elderly lady and effectively deprived her estate of her house for a knockdown price.”
In mitigation, Mr Harvie’s solicitor-advocate, Ian Ryan from Howard Kennedy, argued that the solicitor had entered into the financial arrangement with the woman, referred to as Mrs S and now deceased, for the “best of motives”.
The SDT heard: “He accepted his error in not insisting that Mrs S take independent advice and so he had acted in conflict or risk of conflict of interest but his motives were at all times honourable; he intended to help her and at some point matters went wrong.
“The respondent accepted the finding that he took unfair advantage but that was not his intention when he entered the financial arrangement.”
The SDT heard how the investigation by the Solicitors Regulation Authority arose out a complaint from a member of the public about Mr Harvie’s conduct towards the woman, who had no surviving relatives in this country.
Mr Harvie drew up Mrs S’s will, naming himself and a friend of hers as executors. Before her death, he entered into a “financial arrangement” with her, to pay initially for her household expenses, mainly council tax and later care costs. In return he gradually took control over her house.
Mr Harvie’s solicitor-advocate described the financial arrangement as “very much in Mrs S’s interests” and said Mr Harvie was now 73, and had retired in 2012.
“He had no practising certificate and was adamant that he did not intend to practise in the future.
“This was a sad end to an otherwise distinguished career for someone with an unblemished record. The respondent was very proud of being a solicitor and his reputation was now tarnished.”
Mr Ryan argued that what Mr Harvie had done had been for the benefit of a charity to provide assisted housing. Although “it was accepted that the property was now owned by an English company that was not a charity”, initially the intention had been that any benefit would go to charity.
“Regarding damage to the profession, Mr Ryan submitted when one looked at all the circumstances the respondent’s reason for being involved in the arrangement arose from a desire to help and he had fallen into error thereafter. There was no allegation of dishonesty or lack of integrity against him.”
Mr Ryan admitted that a “financial penalty would be appropriate”, but said Mr Harvie’s financial position as pensioner should be taken into account when assessing the fine and costs.
The SDT disagreed. It ruled that although the financial arrangement provided Mrs S with “a vehicle by which she could stay at home”, this was “greatly offset” by the fact that the money paid out bore “no relation to what he ultimately extracted from the arrangement”, obtaining the house for “less than half its probate value and all without independent legal advice”.
The SDT concluded: “This was a case where the most fundamental purpose of sanction, that of maintaining the reputation of the solicitor’s profession, must be uppermost.”
It gave Mr Harvie a year to pay the fine, given its size and the possibility that property might have to be realised in order to pay it.
Tags: breach of trust, Law Society, Solicitors Disciplinary Tribunal, Solicitors Regulation Authority
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