SDT: Emails were accurate
A solicitor accused of misleading her client and her firm about delays in registering lasting powers of attorney (LPAs) has been cleared by the Solicitors Disciplinary Tribunal (SDT).
The tribunal found that the expectations placed on Davina Charlton by East Midlands firm Nelsons were “too high” at the time.
“It accepted her evidence that she was over worked and given limited administrative support,” the newly published ruling said.
“She was firefighting in order to keep her work commitments moving and supporting and supervising the team in Derby in the absence of a partner in that office.”
At the time of the events in 2022, Ms Charlton, who qualified in 2016, was a senior associate in the wills and probate team at Nelsons’ Derby office.
She had prepared LPAs for ‘Client A’ and believed she had sent them for registration at the Office of the Public Guardian (OPG) in November 2021.
Nelsons used a system which meant she would email documents in PDF format to the address ‘Outgoing Post’. Instruction notes could be added to the email but Ms Charlton told the SDT that she did not believe this necessary as she had drafted a letter and it just needed to be sent out with the attachments.
She was chased about progress with the LPAs in April 2022, at which point she discovered they had not been posted in November. She sent them and a fee remission application, and told the client she would speak to the OPG for an update.
Asked for another update the following month, Ms Charlton said the OPG had told her there was a delay in registration.
The client complained in July 2022 and Ms Charlton told the firm’s professional standards team that the LPAs were with the OPG to be registered, there was a fee remission so that took longer to process, and that this was what the OPG had told her when she chased.
The firm reviewed the file and found various of these emails were not saved to it. It apologised to the client for not registering the LPAs promptly – they had paid for a speedy service – and refunded £720. The LPAs were registered by the end of the year.
After a disciplinary process, Ms Charlton – who no longer works at Nelsons – was given a first written warning.
The SRA accused Ms Charlton of deliberately withholding information about the late filing of the LPAs but the SDT found that she “genuinely believed” they had been sent in November 2021.
It accepted her evidence that the April email was “a generic holding email” and she did not have in mind the fact she had sent the LPAs the previous day “because she had so many matters and was simply ‘firefighting’ these owing to the professional and personal pressures she faced at the time”.
There was “no intention to mislead” – the SDT bore in mind these pressures, including a workload of around 130 files with limited administrative support, and systems to deal with post that had let Ms Charlton down in the past and about which she had complained internally.
“The tribunal accepted her evidence that there were systemic failures in the provision of administrative support and that file delays were not uncommon in these circumstances.”
Further, the SDT found the emails she sent in April and May were “factually correct” – the emails to which she was responding did not ask specific questions about when the LPAs were filed.
“Whilst the tribunal fully accept that there can be occasions where omissions are tantamount to misleading information, the tribunal concluded that Ms Charlton did not mislead by omission in her emails and that her emails were honest.
“Her factual evidence was accepted by the tribunal. She made a mistake in not properly checking the files immediately before responding, owing to the significant pressures outlined above.”
Ms Charlton was also cleared of misleading the professional standards team. Her email “did not seek to mislead”; she updated the team with the status of the file and her email again was factually accurate.
“The tribunal found Ms Charlton’s evidence compelling and the [Solicitors Regulation Authority] did not present any evidence to contradict her position about the difficulties she faced managing her heavy caseload with minimal service support.”
It dismissed the allegations against the solicitor. There were no applications for costs by either side.