SDT: Retrospective consent would not be a defence
A solicitor who amended a client’s form of authority when he could not contact her and then sent it to her former employer – not knowing she had died – has been struck off for dishonesty.
Patrick Adrien Fitzgerald sent the form thinking he could get the client’s retrospective consent.
Mr Fitzgerald, born in 1983 and qualified in 2013, was an assistant solicitor at now-defunct Cheshire firm Roberts Jackson.
The Solicitors Disciplinary Tribunal (SDT) heard that ‘Client A’ instructed the firm in February 2014 on a work-related injury and she signed a form of authority to seek her employment records from her former employer. The request was sent in August 2014 but the employer did not respond.
Mr Fitzgerald took over handling the case in June 2016, by which time the client had not responded to letters for some 18 months, including one asking her to re-sign the form of authority. Unbeknown to the solicitor, Client A had died in January 2016.
In order to progress the matter, Mr Fitzgerald covered the original date on the form of authority with a Post-It note and added a new date of 14 July 2016 – he then presumably photocopied it, although the SDT ruling does not say so.
In a statement prepared for a police investigation, he explained that “what was uppermost in my mind was the need to protect the client’s interests and to progress the investigation”.
He intended to inform Client A about what he had done and obtain her consent retrospectively.
In finding that Mr Fitzgerald had acted dishonestly and with a lack of integrity, the SDT said a belief that retrospective consent would be granted was not a defence.
“Even if the client had consented to the date change, [he] knew that the document had not been signed on that date, and thus even in those circumstances, would have known that the document was inaccurate.
“Retrospective consent would not have ameliorated [his] state of knowledge at the time that he amended the form in the way that he did.”
Mr Fitzgerald sent the form to the employer, in response to which the employer informed him of Client A’s death. He then closed the file and wrote to Client A’s family to express his condolences.
The tribunal accepted that his conduct was, in his mind, a bid to preserve his client’s position. “However, acting in the best interests of the client did not supersede his duty to act with honesty and integrity.”
In mitigation, the SDT acknowledged that this was single episode in an otherwise unblemished career, Mr Fitzgerald had voluntarily notified the Solicitors Regulation Authority of the police interest in his conduct and he had made “full and frank disclosure as to the facts”. The ruling did not indicate that the police had pursued the case any further.
But in the absence of any exceptional circumstances, the finding of dishonesty meant “the only appropriate and proportionate sanction, in order to protect the public, and maintain public confidence in the integrity of the profession and the provision of legal services”, was to strike Mr Fitzgerald off the roll.
He was also ordered to pay costs of £3,700.
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