Cemetary: Trust required trustees to arrange regular cleaning of vault
Two solicitors who paid their wives to clean a vault under the terms of a trust they oversaw preferred their interests over those of the trust and its beneficiary, the Solicitors Disciplinary Tribunal has found.
One of the solicitors also claimed excessive payments from the trust for his oversight of the vault.
Christopher Frederick Orford Hutchins, who qualified in 1976, was suspended for two years, while Spencer Paul McGuire, admitted in 1996, was fined £15,000.
Both had been partners at Lister McGuire until it closed in 2008 and fined the SDT in 2010 over various accounts rules breaches, which they blamed on a fraud by another partner.
Mr Hutchins subsequently gave up his practising certificate and moved to France. Mr McGuire was a partner at South London firm Anthony Gold at the time the Solicitors Regulation Authority (SRA) investigated.
The trust, created in 1997, required the trustees to maintain the deceased’s vault for 80 years by having it cleaned by specialists every fortnight and then visiting every two months to ensure it was in order. The RSPCA was named as the residuary beneficiary.
For six years from August 2013, the cleaning was done by South London Cleaning No1 Ltd (SLC), a company owned equally by the solicitors’ wives, for which it was paid £250 per visit, and £37,000 over the whole period.
SLC did no other work and neither woman had any expertise in stonemasonry or cleaning services.
A company specialising in grave maintenance took over in 2019 – shortly after Anthony Gold had reported the matter to the SRA – for half the price.
The SRA provided evidence that the market rate for qualified stonemasons was around £150 per visit.
Mr Hutchins admitted that he knew SLC’s charges were excessive and that he had failed to disclose his wife’s interest in the company to the RSPCA. He admitted that his conduct lacked integrity and damaged public trust, and the SDT determined it was reckless.
It found that Mr McGuire also preferred his interests over those of the trust and RSPCA, to the detriment of public trust.
However, while Mr McGuire “clearly ought to have known” that the payments excessive, the allegation was that he knew they were – and the SRA had not proved this.
The SDT found Mr McGuire’s failure to inform the RSPCA of his wife’s interest was an oversight. Though “culpable”, it was not sufficient to amount to a lack of integrity or taking unfair advantage of third parties.
As he did not perceive the risk that he was acting in breach of his duties as a trustee, his conduct could not be reckless either.
Between November 2012 and July 2019, Mr Hutchins received 46 payments from the trust totalling £36,650 for his professional charges in respect of visiting the vault to check that the cleaning and any necessary repairs had been undertaken.
He admitted these were excessive and again the SDT said he acted recklessly – he knew his fees were based on an hourly rate he used for complex work.
Mr McGuire was alleged to have authorised these payments, which he denied. The SDT said that, “notwithstanding that this issue was clearly flagged, and notwithstanding that there were documents within the bundle which pointed to such authorisation by Mr McGuire, [the SRA’s counsel] did not ask Mr McGuire whether he had authorised the payments”.
This failure was “fatal” to the charge. “It was trite law that matters in dispute should be put to a witness in cross-examination; this had not happened.”
In mitigation, Mr Hutchins said he was generally a “man of integrity” and described what happened as “a rare lapse”. But he admitted he had been “stupid, careless and reckless. He was 72 years old and would not be able to remedy his conduct”.
He added that both men had approached the RSPCA in the hope of divesting themselves of the trust, “but the RSPCA were not interested”.
Mr McGuire said he was an honest solicitor and a man of integrity. “He accepted that in hindsight he should have contacted cleaning companies and obtained quotes from them for the cleaning of the vault before approving the charges raised by SLC.”
In deciding on sanction, the tribunal found that “Mr Hutchins was motivated by his desire to make money for both himself and his wife from his position as a trustee of the trust”.
He had caused harm to the RSPCA and the reputation of the profession. His misconduct was “aggravated by the abuse of his position of power and authority”.
“He had attempted to conceal his misconduct by sending deliberately opaque invoices which did not identify who they were from, did not give an accurate address and, whilst they claimed for time spent, did not particularise how the claimed time had been spent.
“Moreover, he had tried to conceal his wife’s involvement in SLC by corresponding with Mr McGuire in terms that suggested it was not a connected company.”
There was a need to protect the public and the reputation of the profession from future harm by Mr Hutchins, but neither required him “to be permanently removed from practice”.
Mr McGuire’s misconduct “had arisen as a result of his culpable error in failing to disclose his wife’s interest in SLC to the RSPCA”.
Whilst the harm had not been intended, it was “foreseeable” and was aggravated by “the unintentional abuse of his position of power and authority”.
In both this and his previous appearance before the SDT, “Mr McGuire had failed to pay proper regard to financial affairs”. A fine was “the appropriate and proportionate sanction”.
The SDT ordered Mr Hutchins to pay costs of £22,500, which it halved because of his limited means, and Mr McGuire £7,500, to reflect the former’s greater culpability.
Leave a Comment