Farm: Transaction passed property from father to son
The Solicitors Disciplinary Tribunal (SDT) has cleared a conveyancer of taking instructions from a client’s son and of manifest incompetence in a property transaction during the pandemic.
However, the SDT reprimanded Mark Feely for failing to provide his client with “any or adequate information” or advice about the transfer of the farm from father to son.
The tribunal slashed the £41,000 in costs claimed by the Solicitors Regulation Authority (SRA) by 85% as a result.
Mr Feely, who qualified in 2002, was and is a partner at David Barney & Co in Stevenage, Hertfordshire.
The father, Client A, reported concerns about Mr Feely’s conduct of a property transaction between himself and his son, ‘JR’, in June 2023. The farm, which was also Client A’s home, was his only asset and residence.
Client A complained that the solicitor “never offered or gave him any legal advice during the property transaction, did not provide any documentation to him in relation to the transaction and failed to confirm his identity and health”.
JR, who had instructed Mr Feely on “numerous other commercial transactions”, emailed him in September 2020, introducing his father and saying that “basically my dad is gifting the farm to me”.
Client A replied later the same day, telling Mr Feely to let him know if he needed more information. JR had his own solicitor already.
On 23 December 2020, Mr Feely emailed JR, copying in Client A, to say the property transfers – because the tile had been split – had completed.
However, the SDT accepted Mr Feely’s evidence, disputed by Client A, that they spoke on the phone two days before completion.
It was not disputed that the solicitor had neither spoken to nor taken instructions directly from Client A up to this point. “[He] had not provided Client A with any information regarding his client care arrangements, nor had he confirmed, as requested by JR’s solicitors, Client A’s state of health in the context of his capacity to enter into the transaction.”
By failing to provide Client A “with any or adequate information regarding the terms of his instruction and client care arrangements, or advice on the transaction”, Mr Feely failed to act in his client’s best interests and failed to uphold public trust.
But it rejected the SRA’s contention that this amounted to manifest incompetence.
Further, the tribunal was “satisfied” that, in the 21 December call, the solicitor had “confirmed his instructions and provided at least some advice as to the nature and effect of the transfer, but without providing separate detailed written advice”.
The solicitor communicated several times with JR during the course of the transaction, but the SDT found that “this was directed to administrative or status updates in relation to the practicalities of conveyancing process rather than the provision or receipt of instructions”.
It therefore dismissed the allegation that Mr Feely “communicated with or through JR and took instructions on aspects of the transaction from JR”.
In deciding a reprimand would suffice, the SDT said the misconduct “arose in the context of a single conveyancing transaction and noted that it did not involve dishonesty, lack of integrity, manifest incompetence, or any personal gain”.
Mr Feely had “made appropriate admissions, had co-operated fully throughout the investigation and proceedings, had demonstrated genuine insight into his failings and had an otherwise unblemished career.”
The SDT accepted that the failings occurred during the exceptional circumstances of the pandemic and had not been repeated.
On costs, the tribunal said the SRA was entitled, in principle, to recover its costs, the proceedings having been properly brought in the public interest and there had been a genuine dispute of fact which required determination.
However, the £40,800 claimed by the SRA was reduced to reflect “the limited extent of the findings made, the respondent’s admissions and the overall circumstances of the case”.
Mr Feely was reprimanded and ordered to pay costs of £6,000.
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