SDT: Approved fine
A criminal defence solicitor who said he certified two lasting powers of attorney (LPAs) “as a favour” for an elderly client who was a friend of his father has been fined £6,000 for failing to make the necessary checks.
Virinder Kumar Ghaiwal said he “had no experience of private client law” and “understood that he was being asked to witness a signature”, having failed to appreciate the role and obligations of an LPA certificate provider.
The Solicitors Disciplinary Tribunal (SDT) heard that Mr Ghaiwal, admitted in 1999, was a solicitor at Birmingham law firm GQS Ltd at the time of the misconduct in 2014.
He was prosecuted along with Ian McLachlan, a consultant at GQS, who admitted multiple failures in relation to the same elderly client, 92-year-old Client A, as we reported yesterday.
They agreed separate outcomes of their cases with the Solicitors Regulation Authority (SRA), which were then approved by the SDT.
Mr Ghaiwal admitted that, while acting in May 2014 as certificate provider in respect of Client A’s two LPAs, he failed to verify instructions and to ensure Client A understood the purpose of the LPAs and/or the scope of the authority they provided.
The SRA said Client A was entitled to expect that Mr Ghaiwal “would know and have scrupulous regard” to his obligations.
It was alerted by a report by West Midlands Police, which said Client A “had been persuaded” to move in with his nephew, enter into the LPAs appointing the latter as his attorney, make a new will and sell his house.
The SRA said Mr Ghaiwal witnessed the LPAs – which were not drafted by GQS – and signed the certificate as a solicitor in the box asking him to confirm he had ‘relevant professional skills’.
He had argued that he was simply acting as a witness but the SRA said that, by signing as a skills-based certificate provider, he was required to ensure that the client “understood the terms of the LPA, the authority being granted and that it was made without undue influence”.
An expert in mental health and capacity commissioned by the SRA to provide a report on the role of certificate provider concluded that Mr Ghaiwal’s was “far, far more” than a witness, and his failure to recognise he was a certificate provider, and the resulting duties and responsibilities, was “an egregious breach” of his obligations.
Fulfilling these would have taken more than the “few” minutes the solicitor said he spent on the task – the Law Society practice note on LPAs, cited by the SRA, advises solicitors that, before signing the certificate, they should take a “suitably detailed personal and financial history from the donor, and if necessary insist on seeing them on their own, to satisfy the requirements concerning undue pressure and fraud”.
Mr Ghaiwal had told the SRA that the only enquiry he made of Client A was to ensure that he was “content with the documents and the advice”, and that he understood Client A was making the “decisions of his own free will and not being influenced”.
But there was no note of this meeting with Client A, nor of his claim that Client A had contacted the firm solely to witness the signature. “There is no evidence on the file that this was the limit to the remit of the instructions given… or that Client A understood the limitations on the scope of [Mr Ghaiwal’s] role.”
In non-agreed mitigation, Mr Ghaiwal said he signed the LPAs as a “favour for a friend and made no charge” and that Client A was a friend of his father.
He conceded that he should have instead signed as a ‘non-professional’ who had known Client A for more than two years.
The SRA agreed not to proceed with further allegations, denied by Mr Ghaiwal, that he failed to advise Client A of his options for choice of attorney, the risks of abuse and measures to safeguard the LPAs being misused or exploited.
The regulator said these were predicated on the solicitor’s denial that Client A was his client.
While not conceding this point, the SRA said it did not consider “proof of the disputed particulars” was “likely to add much (if anything) to the seriousness” of Mr Ghaiwal’s admissions or make “a material difference” to the sanction.
He was fined £6,000 and ordered to pay £11,000 in costs.
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