SDT rules emails were factually accurate and rejects claims of misleading conduct by omission in LPA case
The Solicitors Disciplinary Tribunal has dismissed allegations that a solicitor misled a client and her firm in relation to the handling of lasting powers of attorney (LPAs), finding no evidence of dishonesty or lack of integrity.
The case concerned Davina Charlton, who at the relevant time was working as a senior associate in a private client practice. The allegations arose from her handling of LPA applications which, although prepared, had not in fact been submitted to the Office of the Public Guardian when she believed they had.
In communications with the client, Ms Charlton referred to delays at the Office of the Public Guardian. The central issue for the tribunal was whether those statements, made without acknowledging that the applications had not yet been filed, amounted to misleading conduct.
The tribunal accepted Ms Charlton’s evidence that she “genuinely believed” the LPAs had already been sent for registration. It found that this belief was honestly held and that her communications reflected her understanding of the position at the time.
Further, the tribunal found that the emails she sent in April and May were “factually correct”, noting that the emails to which she was responding did not ask specific questions about when the LPAs had been 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.”
In considering whether there had been misleading conduct by omission, the tribunal therefore held that she “did not mislead by omission” and that there was “no intention to mislead”.
The tribunal accepted her factual evidence, noting that she had made a mistake in not properly checking the files immediately before responding, “owing to the significant pressures outlined above”.
The tribunal also rejected allegations that she had misled her firm. Her internal email “did not seek to mislead”; she updated the professional standards team with the status of the file and her email again was factually accurate.
In assessing her conduct, the tribunal placed significant weight on the working conditions she faced. It noted that “the expectations expected of her at the material time were too high” and accepted her evidence that she was “over worked” and given “limited administrative support”. It found that 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”.
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.
The tribunal also accepted evidence of wider administrative difficulties within the firm, including issues with document handling, which contributed to the failure to identify earlier that the LPAs had not been submitted.
It found Ms Charlton’s evidence “compelling” and noted that the Solicitors Regulation Authority did not present any evidence to contradict her position about the difficulties she faced managing her heavy caseload with minimal support.
While noting that her communications could have been clearer, the tribunal drew a distinction between imperfect practice and professional misconduct.
In the absence of evidence demonstrating dishonesty or a lack of integrity, the tribunal dismissed the allegations against her. There were no applications for costs by either side.