“Too kind” solicitor struck off for backdating EPA to save client money


Signature: Solicitor backdated documents to before law change

An experienced solicitor who tried to save an elderly client the cost of updating her power of attorney by purporting to have witnessed it seven years earlier, has been struck off.

The Solicitors Disciplinary Tribunal decided this was not an exceptional case of a ‘moment of madness’, because there had been a week between the conception of the plan and its execution.

The fact the solicitor had created a document he knew was invalid and so unenforceable, trumped the fact he stood to make no personal gain by backdating the document.

Robert Henry Foster was born in 1954, admitted in 1978, and was a partner in Foster Law in Skipton, North Yorkshire.

He created a will for the elderly client when in his previous firm in 2003. In 2010 she wanted to update her will and power of attorney.

To save her the cost of a new lasting power of attorney (LPA) under the Mental Capacity Act 2005, he witnessed an enduring power of attorney (EPA) under its predecessor Act, backdated to 2003, knowing full well the law had changed and that, if executed after September 2007, it would be defective.

When the deception came to light in 2016 and he was accused of conduct breaches, Mr Foster admitted dishonesty with “profound regret and contrition”, but claimed that nobody had suffered detriment and that “if this was not considered a single moment of madness, it was close”.

In mitigation, he told the tribunal he had been “too kind” and “too helpful”.

Although he had had an earlier brush with the disciplinary tribunal, after being found guilty of possession of a carving knife in a public place – for which he had been fined £4,000 for conduct unbefitting a solicitor – Mr Foster submitted this was not relevant.

Assessing sanction, the tribunal accepted he had not stood to gain financially from the misconduct, but nevertheless his actions were planned.

While he may have acted spontaneously initially, he had obviously given some thought to making the invalid document plausible by giving two different addresses on an updated will witnessed at the same time, the SDT found.

It recorded: “He was vastly experienced and knew the rules as regards EPAs and LPAs. He had used that experience to circumvent those rules.”

The tribunal accepted Mr Foster’s motivation had been altruistic, but while his misconduct may have been less reprehensible as a result, this “did not negate [his] culpability.”

It found his previous conviction demonstrated Mr Foster’s “lack of good judgement, and a repeated disregard for his obligations as a solicitor”.

Striking off the solicitor, the SDT concluded harm had been caused to the profession’s reputation: “The respondent had formulated a plainly dishonest course of action and had carried that through a week later. Members of the public would not find that such conduct, despite the altruistic purposes, was understandable.”

He was ordered to pay £7,942 in costs.

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