SDT: Solicitor’s motivation was financial
A solicitor used “vulnerable” clients’ money for his own purposes, as well as holding onto cash for disbursements and leaving client damages in his office account, has been struck off.
Nicholas Peter Whiffen was “effectively running the client and office accounts as one”, the Solicitors Disciplinary Tribunal (SDT) found.
It described the way had sought to “justify” his actions by reference to his personal and business partner’s illness and death as “rather unpalatable”.
In assessing the harm caused by Mr Whiffen’s misconduct, the tribunal said many of his clients were “vulnerable and were looking to him and were dependent on him”.
They had “medical negligence and/or prisoner claims” and were “ill-equipped” to deal with the consequences of the sole practitioner’s misuse of their money.
The SDT said it recognised that the solicitor’s partner, RH, “had been severely ill and had subsequently passed away and left him bereft” and had “great sympathy” with him in that regard.
“However, the financial problems of the firm, which gave rise to the serious misconduct had pre-dated RH’s illness.
“The difficult personal circumstances could not obscure the fact that the respondent would have been aware of his professional duties, particularly in relation to client monies.”
It was “rather unpalatable” that “he had sought to justify dishonest withdrawals from the client account by reason of RH’s illness and death”.
The tribunal heard that Mr Whiffen, admitted in 1997, was sole principal of Hesling Henriques Solicitors in West Malling, Kent, at the time of the misconduct.
A barrister reported to the Solicitors Regulation Authority (SRA) in July 2019 that she had not received fees for three medical negligence cases which the firm had instructed her on in 2015 and which totalled over £28,000.
The barrister said all three cases were carried out under conditional fee agreements, and she had evidence that the cases had settled and Mr Whiffen had received costs, including to cover her fees. The SRA launched an investigation and closed Hesling Henriques in March 2020.
The tribunal found that Mr Whiffen had allowed unpaid disbursements of £154,000 to be incorrectly held in office account.
He also approved 50 improper payments totalling £30,000 from client account to his personal account as well as going towards staff wages and office overheads; the dates on which he authorised the payments were when the office account was either close to or over the overdraft limit.
As at 10 February 2020, the SDT recorded, the firm had outstanding business loans totalling £453,000, of which only one loan of £160,000 was secured by a charge over Mr Whiffen’s personal property.
He also held over £12,000 of client damages in office account.
Mr Whiffen admitted most of the main allegations against him but he “vehemently denied any allegations that he ever acted dishonestly”. However, the SDT found that he had.
He decided to withhold payments for legitimate disbursements “due to the parlous state of the firm’s finances”; knowingly making the payments into his personal account and withholding the payment of damages “would be considered dishonest by the standards of ordinary decent people”.
The tribunal said his motivation was financial, the misconduct was planned and there was a clear breach of trust. It “noted that there was no direct evidence of loss but it also noted that the respondent was the subject of a bankruptcy petition”.
Mr Whiffen’s misconduct was “deliberate, calculated and repeated”, although “mitigated to a limited extent by the fact that some of the disbursements had been paid and there had been some admissions to the allegations”.
Mr Whiffen was struck off and ordered to pay costs of £18,500.
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