An assistant solicitor and his firm have been handed hefty fines after the failure of a Chinese wall between two clients, a woman and her abusive husband, led to the man being told her new address against her specific instructions.
The Solicitors Disciplinary Tribunal approved an outcome agreed by the Solicitors Regulation Authority (SRA) with Cardiff firm Spicketts Battrick and family law solicitor Stephen Andrew Alexander, 50, that they should be fined £20,000 and £15,001 respectively – the latter being the absolute minimum fine for misconduct judged ‘very serious’ – plus £7,000 in costs.
Mr Alexander was acting for the husband, Mr VM, in child contact and divorce proceedings while the firm was also acting for the wife, Ms SH, in a conveyancing transaction.
Mr VM had been sent to prison and made the subject of a seven-year restraining order for an assault on Ms SH, who had expressly told the firm not to disclose her new address to him.
According to agreed statement of facts, when Ms SH first sought to instruct Spicketts Battrick, a conflict check threw up the fact that it was already acting for Mr VM. Ms SH still wanted to instruct the firm.
Its senior partner and COLP decided that, as the matters would be conducted by two fee-earners in different offices, the firm could accept Ms SH’s instructions as there would be a Chinese wall in place. Mr VM’s solicitor, Mr Alexander, was not made aware that the firm was acting for Ms SH.
The firm admitted that, despite its assurances to Ms SH, it failed to put in place any measures, including a Chinese wall, to protect the confidential information held on behalf of her, such as limiting the recipients of emails sent out by the accounts department when monies were received from Ms SH, or ensuring there was restricting access to her files so that Mr Alexander could not access them.
After Spicketts Battrick received funds from Ms SH, its accounts department sent an email to all fee-earners confirming that it had received money on account from a client with Mr VM’s unusual surname.
Mr Alexander, who was not expecting any money from Mr VM, then discovered that Spicketts Battrick was acting for Ms SH.
He initially told Mr VM that his former wife was purchasing a new property and later, despite being aware of the restraining order, disclosed the address.
Ms SH complained to the Legal Ombudsman, which ordered Spicketts Battrick to pay for an alarm system and its service charge for the duration of the restraining order, plus £500 for upset and distress.
The ombudsman then referred the case to the SRA.
In mitigation, Mr Alexander said he was acting in what he thought was his client’s best interests when he took the view that Ms SH’s new address would inevitably be disclosed by Ms SH during the divorce proceedings.
In what he accepted was a “gross error of judgment” that had caused him “significant distress and regret”, Mr Alexander said he thought this would not cause harm and “would satisfy what I saw as my absolute duty to my client not to withhold information from him”.
He said he had a duty of disclosure to his client and could not have advised Mr VM in negotiating a divorce settlement without giving some indication of the information he had obtained.
“He admits that he wrongly failed to give consideration of the duties that were also owed to Ms SH as a client of the firm… and he gave insufficient thought to the restraining order.”
Mr Alexander said he should have raised the problem with the partners, and for the firm, the senior partner said he would have told the solicitor that the duty of confidentiality overrode the duty of disclosure, and that Spicketts Battrick would have ceased acting on both matters.
The firm also told the SRA that “this is a matter that we are embarrassed by and ashamed of. We deeply regret the distress caused to [Ms SH]”.
The SRA accepted that fines would be sufficient sanctions “to mark the seriousness of the misconduct and to protect the public and reputation of the profession”.