Car park: Money handed over by client’s brother-in-law
A veteran solicitor who received £6,000 in cash from a legally aided client’s brother-in-law in a car park has been cleared of breaching legal aid rules.
However, the Solicitors Disciplinary Tribunal (SDT) decided that Nigel John Weller should be reprimanded for not paying the money promptly into client account and not undertaking proper due diligence on it.
It also slashed the costs sought by the Solicitors Regulation Authority (SRA) by 75%.
The 72-year-old solicitor runs Nigel Weller & Co, which specialises in defending people prosecuted for animal welfare offences. He qualified in 1977.
He was accused of breaching the Criminal Legal Aid (Remuneration) Regulations 2013 in seeking and receiving £6,000 on behalf of two clients he was representing under legal aid representation orders to cover hotel, subsistence and travel costs that were not recoverable under them.
Mr Weller accepted that, during the January 2022 trial at Southampton Crown Court, one of the client’s brother-in-law gave him £6,000 in cash in a car park. This was against the backdrop of a Crown Court restraint order restricting access to the clients’ assets.
He said the funds were held securely in his safe pending assessment by the Legal Aid Agency.
Following the agency’s refusal of his expense claims – because such expenses would not have been incurred by a solicitor local to the clients – and the termination of his instructions, he retained the money.
He said he did not notify the clients or the brother-in-law of the outcome of the claims or offer a refund. However, the money remained untouched and available for return. He maintained that there was no intention to conceal the arrangement or misuse the funds.
The SDT found the 2013 regulations “ambiguous” on whether the payment was a breach. It accepted that Mr Weller’s request for the money may have related to expenses not recoverable under the legal aid scheme and so was not satisfied that it amounted to a breach.
Nor was accepting the money was a breach either: “The payments were made pursuant to an informal arrangement, and the evidence as to their purpose and origin was inconclusive.”
But, contrary to Mr Weller’s argument, the SDT considered that the funds constituted client money, even though they came from a third party.
“It noted that [he] had described the funds as being held to cover expenses and potentially to deal with issues arising under the Proceeds of Crime Act. On that basis, the tribunal was satisfied that the funds fell within the definition of client money.”
The SRA accounts rules require that, where funds are not paid into a client account, an alternative arrangement must be agreed in writing with the client or third party from whom or for whom the money is held.
There was no such agreement here and so this was in breach of the rules, albeit the SDT described it as “technical in nature”, given Mr Weller had not acted dishonestly, nor misused or concealed the money.
As a result, the SDT rejected the Solicitors Regulation Authority’s case that he had breached principle 2 of the SRA Principles (upholding public trust and confidence).
It also found Mr Weller failed to carry out appropriate due diligence and source of funds checks.
“The conversation with the third party was limited, no ID checks were undertaken, and [he] did not take sufficient steps to verify the origin of the funds, particularly given the size of the payment and the existence of a restraint order.”
Again, given the context and the fact Mr Weller “had some knowledge of the source and purpose of the funds”, his conduct had not breached principle 2.
In deciding on sanction, the SDT said the breaches “occurred against a unique set of circumstances” – no actual harm had been caused and the risk of harm was minimal. A reprimand would suffice, it concluded.
The SRA sought costs of nearly £32,000. The SDT noted that the adverse findings “concerned only the less serious matters, leaving the major allegations unsubstantiated”, and awarded £8,000.
