SRA: Sanction appropriate in the circumstances
A solicitor has been “severely reprimanded” by the Solicitors Regulation Authority (SRA) after he compounded an error made by his firm 15 years previously when it failed to follow instructions over a property transfer.
It is not a sanction that is seen any more – rebukes are now handed out instead – but the SRA said it was available when the events took place a decade ago.
The SRA has published a regulatory settlement agreement with Paul Kininmonth, senior partner of Wakefield firm Catteralls, that means he will not be referred to a disciplinary tribunal.
According to the agreement, in 1991 Catteralls was instructed to transfer properties to Ms X and Mr Y, in line with the will of Ms X’s brother. However, Catteralls failed to do this and the properties remained in the joint names of Ms X and her brother.
Although he was at the firm at the time, the agreement did not state whether Mr Kininmonth carried out the work.
Some 15 years later, Ms X instructed Catteralls to act for her in arranging a charge over her properties to secure a bank loan to Mr Y. Catteralls acted for Ms X, Mr Y and the bank.
With Mr Kininmonth on holiday, a locum solicitor carried out the work but did not provide all the required advice to Ms X about the risks and consequences of signing the charge.
When Mr Kinimonth returned, the locum gave him an undated charge deed which had been signed by Ms X and Mr Y and witnessed by the locum, and a certificate of execution which the locum had signed.
The certificate confirmed to the bank that the locum had independently advised Ms X of the risks involved, that she understood the nature and consequences of the charge, and that she entered into it willingly.
Mr Kininmonth completed the transaction and only when the bank instructed him to register the charge did he discover that the locum had not established the properties’ ownership, which were still in the names of Ms X and her brother.
Nearly two years later, Mr Kininmonth asked Ms X and Mr Y to sign a transfer of the properties into their joint names, which they did.
He re-dated the charge signed by Ms X and Mr Y in 2006. He did not obtain authority to do this, nor did he advise them each to obtain independent legal advice. He also failed to tell Ms X about the potential adverse consequences for her of the transaction
As part of the agreement, Mr Kininmonth admitted that he compromised his independence and his duty to act in the best interests of each client by not advising Ms X, Mr Y or the bank that they each had a potential negligence claim against his firm, that the firm could no longer act in the matter due to an own interest conflict, and that each client should take independent legal advice.
That meant he also acted in a conflict of interest, because it was in Ms X’s interest for the charge to remain unregistered, in Mr Y’s interest to argue his debt was unsecured, and in the bank’s interest for Mr Y’s debt to be secured against the properties.
The SRA said the agreement was an appropriate outcomes given Mr Kininmonth’s co-operation with its investigation, his previously unblemished regulatory history and the time that had elapsed since the misconduct occurred.
Further, the solicitor presented “significant personal mitigation”, including the impact on his health.
It added: “The conduct occurred between August 2006 and June 2008, so it is appropriate to agree an outcome which the SRA or its predecessor body could have imposed at that time.”
The reprimand was a severe one because Mr Kinimonth’s conduct had caused Ms X “serious distress” and to incur legal costs, some of which she has been unable to recover.
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