Decision - Agreement
Outcome: Regulatory settlement agreement
Outcome date: 12 March 2020
Published date: 26 February 2021
Firm or organisation at time of matters giving rise to outcome
Address(es): Provincial House, Albion Street, Cleckheaton, West Yorkshire BD19 3JG
Firm ID: 051699
This outcome was reached by SRA decision.
1. Agreed outcome and undertakings
1.1 Joy Potentier (SRA ID: 121178) ('the Respondent'), a solicitor and former employee of Rothery Ineson Solicitor (sic) (622792) ('the Firm') of 20-22 Albion Street, Cleckheaton, Bradford, West Yorkshire, BD19 3JG, agrees to the following outcome of the investigation into her conduct by the Solicitors Regulation Authority ('SRA') under reference TRI/1250729-2018:
- she is fined £2,000.00;
- this agreement shall be published;
- she will pay the SRA's costs of the investigation in the agreed sum of £9,250.00 plus VAT within 28 days of receipt from the SRA of a statement of costs due.
1.2 By entering into this agreement, the Respondent also provides the following undertakings to the SRA:
- that she will take all necessary steps to remove her name from the Roll of Solicitors as soon as reasonably practicable;
- that she will never apply for readmission to the Roll of Solicitors.
2. Summary of Facts
2.1 The Respondent is a former employee of the Firm and was previously a partner in one of its predecessor firms, namely, Inesons (51699).
2.2 On 2 November 2017 the Forensic Investigation Department of the SRA commenced an inspection of the Firm and thereafter produced a Report dated 2 May 2018 ('the FI Report').
2.3 The FI Report identified breaches of the SRA Principles 2011 and the SRA Code of Conduct 2011 by the Respondent, as set out below.
- Inesons was instructed in the administration of the estate of YB (deceased). The Respondent, then a partner in Inesons, prepared and submitted to the Probate Court an Oath for Executors ('the Oath') knowing that it contained a false statement.
- The false statement alleged that Ms D, a named executor of the Will and one of the daughters of the deceased, had received notice of the application for the Grant of Probate ('the Grant') and to the reservation of power to her.
- Ms D had not received the notice. The Respondent therefore knowingly submitted an Oath containing a false statement to the Probate Court. The Probate Court placed reliance on the statements of the sworn Oath, which subsequently resulted in the appointment of Mrs P, one of the other named executors of the Will and also a daughter of the deceased, as the sole Executor.
- The Respondent failed to advise Ms D to obtain independent legal advice to consider the possibility of a claim against the Firm, with respect to these events. The Respondent continued to act in the administration of YB's estate, in the face of a conflict of interest or the significant risk thereof.
3.1 The Respondent makes the following admissions, which the SRA accepts:
1.1. On or before 15 June 2015, while acting in the estate of YB, she prepared and submitted to the District Probate Registry an Oath for Executors containing a statement which she knew to be false or misleading and therefore:
1.1.1. breached all or any of Principles 2, 4, 5, 6 and 10 of the SRA Principles 2011 ('the Principles');
1.1.2. failed to achieve all or any of Outcomes 1.1, 1.2, 5.1, 5.2 and 5.6 of the SRA Code of Conduct 2011 ('the Code').
1.2. Between 15 June 2015 and approximately 28 August 2015 she:
1.2.1. continued to act in the estate of YB in circumstances giving rise to a conflict of interest or a significant risk thereof;
1.2.2. failed to advise the executors or any of them to seek independent legal advice, in circumstances where this was indicated;
and she therefore:
1.2.3. breached Principle 6 of the Principles;
1.2.4. failed to achieve Outcomes 1.16 and/or 3.4 of the Code.
4. Why a fine is an appropriate outcome
4.1 The SRA's Enforcement Strategy sets out its approach to the use of its enforcement powers where there has been a failure to meet its standards or requirements.
4.2 When considering the appropriate sanctions and controls in this matter, the SRA has taken into account the admissions made by the Respondent and the following mitigation which she has put forward (but the inclusion of such mitigation in this document does not indicate that it is adopted or endorsed by the SRA):
- The Respondent does not wish to add anything.
4.3 The SRA considers that a fine is the appropriate outcome because the conduct was serious but not so serious that referral to and sanction by the Tribunal is necessary or proportionate in order to maintain professional standards and uphold public confidence in the solicitors' profession. A financial penalty therefore meets the requirements of rule 4.1 of the Regulatory and Disciplinary Procedure Rules.
5. Amount of the fine
5.1 The amount of the fine has been calculated in line with the SRA's published guidance on its approach to setting an appropriate financial penalty ('the Guidance').
5.2 Having regard to the Guidance, the SRA and the Respondent agree that the nature of the misconduct was ‘high' because, although the Respondent has cooperated with the investigation, the conduct was intentional or at least reckless and it continued during the period set out in Admission 1.2 above. The Guidance gives this type of misconduct a score of three.
5.3 The SRA considers that the impact of the misconduct was low because no loss was actually caused to Ms D who was ultimately satisfied with the Firm's handling of the matter. The Guidance gives this level of impact a score of two.
5.4 The ‘nature' and ‘impact' scores add up to five. The Guidance indicates that a broad penalty bracket of £1,000.00 to £5,000.00 is appropriate.
5.5 In deciding the level of fine within this bracket, the SRA has considered the mitigation at paragraph 4.2 above which the Respondent has put forward.
5.6 On the basis that the conduct was deliberate or at least reckless, The SRA considers a basic penalty of £5,000.00, which is at the top of the bracket, to be appropriate.
5.7 However, the SRA considers that the basic penalty should be reduced to £2,000.00. This reduction reflects the Respondent's early admissions to and cooperation with the FI officer, the low impact/ harm caused, the fact that the Respondent is no longer practising and does not intend to practise in future, her willingness to come off the Roll of Solicitors and never reapply and the mitigation outlined in paragraph 4.2 above.
6.1 The SRA considers it appropriate that this agreement is published in the interests of transparency in the regulatory and disciplinary process. The Respondent agrees to the publication of this agreement.
7. Acting in a way which is inconsistent with this agreement
7.1 The Respondent agrees that she will not deny the admissions made in this agreement or act in any way which is inconsistent with it.
7.2 If the Respondent denies the admissions or breaches the undertakings referred to in paragraph 1.2 above or acts in a way which is inconsistent with this agreement, the conduct which is subject to this agreement may be considered further by the SRA. That may result in a disciplinary outcome or a referral to the Solicitors Disciplinary Tribunal on the original facts and allegations.
7.3 Denying the admissions made or acting in a way which is inconsistent with this agreement may also constitute a separate breach of principles 2 and 5 of the SRA Principles 2019 and paragraph 7.3 of the Code of Conduct for Solicitors, RELs and RFLs.
8.1 The Respondent agrees to pay the costs of the SRA's investigation in the sum of £9,250.00 plus VAT. Such costs are due within 28 days of a statement of costs due being issued by the SRA.
The date of this Agreement is 12 March 2020.