Probate: Solicitor’s breach of trust
A solicitor was manifestly incompetent in failing to progress probate matters for as long as a decade, but his misconduct did not amount to a lack of integrity, a tribunal has ruled.
The Solicitors Disciplinary Tribunal (SDT) said a fine of £16,000 was an appropriate sanction for Peter Mark Arnstein’s “multiple breaches of several principles over many years”.
Mr Arnstein, who qualified in 1977, worked from 1995 at a South London law firm that became known as Forman Welsh & Bellamys; from January 2015 until it merged with Coplexia Collaborative on 1 October 2017, he was a sole practitioner. He resigned from Coplexia in 2019.
Mr Arnstein admitted that he failed to progress three probate matters over several years – one of them an estate worth £4m – resulting in HM Revenue & Customs (HMRC) imposing £59,000 of tax penalties in one of them.
When asked why no work had been conducted on one matter for over a decade, the solicitor said: “I think that the best that can be said is that… it was a matter… that was known about and… was going to be looked at and progressed, but regrettably remained on the bottom of the pile.”
Mr Arnstein admitted breaching four SRA principles – to act in the best interests of each client, to provide a proper standard of service, to behave in a way that maintains public trust, and to run his business effectively. However, he denied acting without integrity.
The SDT said: “The tribunal was satisfied that Mr Arnstein had dropped his standards significantly… The failure to progress these three matters over a period of several years, despite reminders, was a clear case of manifest incompetence.”
But the tribunal was not satisfied that the failures rose to the same level as the type of misconduct described in the Court of Appeal’s 2018 ruling [1] in Wingate, which defined what a lack of integrity meant for the purposes of solicitors’ misconduct.
Those examples included deliberate acts or deliberate omissions done for the solicitor’s own benefit, which was not the case here, the SDT said.
“There was a distinction in seriousness between a solicitor who recklessly allowed a court to be misled and Mr Arnstein, who had essentially done nothing on a matter he ought to have been progressing.
“The tribunal noted that Mr Arnstein had not tried to blame anyone else or mislead his colleagues or the SRA and so he had not in any way sought to conceal his failings or avoid his responsibility for them.
“There was no evidence that he had taken a deliberate decision to neglect these files, albeit he had received correspondence during the relevant time period which should have acted as a prompt not to neglect the files.”
This was relevant in considering whether Mr Arnstein had been unethical as opposed to manifestly incompetent, the SDT went on, concluding that it was not satisfied on the balance of probabilities that he had lacked integrity.
In mitigation, Mr Arnstein’s advocate said the solicitor was “deeply embarrassed and ashamed”.
He continued: “He offered a sincere and genuine apology to the estates, beneficiaries, the regulator, the public, the profession and the tribunal.”
The solicitor-advocate, Jonathan Goodwin, argued that the tribunal could be confident that Mr Arnstein would not be appearing before it again. He had co-operated fully with the SRA and had “never attempted to excuse his actions”.
In deciding on sanction, the SDT said: “Mr Arnstein was very experienced and the work he was undertaking was one that involved significant trust being placed in him. His failure to progress those matters amounted to a breach of that trust.”
This resulted in delays in payments to beneficiaries, charities and HMRC. There was also harm to the reputation of the profession. “The misconduct was mitigated by Mr Arnstein’s insight, which the tribunal accepted was genuine.”
The SDT reduced the costs sought by the SRA from £33,550 to £14,000, in part due the regulator’s delays in progressing the prosecution.