Solicitor paid in money they should reasonably have suspected was stolen

[YorkshireMan]

I've tried to simplify a very complex situation as far as I can in order to ask the question so bear with me. The background was the serious financial abuse of my elderly and vulnerable mother-in-law by my sister-in-law. SiL had a long history of overspending/debt problems and had pressured MiL for bail outs on many occasions - but ultimately got herself into so much debt, she was facing bankruptcy. MiL was pressured into giving up her home to save SiL from bankruptcy in exchange for the promise of a self contained extension being built for her at SiLs house and a home for life. But instead of doing what she promised after having all her debts paid off, SiL had access to MiLs bank accounts (MiL is blind in one eye and poorly sighted in the other) and spent all the rest of her money - then she tried to bully and intimidate MiL into leaving as she didn't like her, never wanted her in her house, and only wanted her money to feed her lavish spending habits. When the bullying and intimidation didn't work, SiL employed a solicitor to threaten MiL with eviction, and when that didn't work, SiL got her solicitor to apply to the courts to evict her own mother. SiL denied she had made any commitment to build the extension and denied taking huge sums of money without MiLs permission or knowledge saying they were a gift. Cutting a long story short, MiL didn't want to involve the Police so a full defense and counterclaim was filed at the County Court. Judge ordered SiL to attend mediation - where she realised just how hopeless her case was and that the entire family were lining up to give some very damning evidence against her. She agreed to sell her own house and pay MiL what little compensation she could, and then fled in disgrace.

However, my question relates to the behaviour of SiLs solicitor:

1. Initially, I'm willing to accept SiLs solicitor will have acted for his client in good faith without realising the extent of SiLs criminal misconduct. But it would have become apparent quite quickly that SiL was actually being accused of theft/fraud involving a very large sum of money (£120K) and her stories were laughably implausible. Furthermore, if the money in dispute was taken out of the equation, it would have been clear that SiL was in no financial position to be paying for expensive solicitors. So in my opinion, the solicitor must have realised at some point that on balance of probability, he was being paid with money stolen from the defendant - but continued to act right through the process where his clients decision to settle out of court and pay compensation should have removed all doubt over her guilt in his mind. I'm wondering whether we would be able to raise a claim in the small claims court against the solicitor to try and recover some of his fees - OR whether he can simply say that his client assured him the money was legit and (for example) coming out of her salary rather than the money she had misappropriated OR whether he can hide behind the fact his client was never actually prosecuted for the offences.

2. The solicitor instigated court action on behalf of his clients knowing full well that MiLs solicitor was literally a couple of days away from hitting him with a formal letter of claim, and he had been warned not to take court action in the meantime. So it was in my opinion, a deliberate attempt to terrify MiL into backing down as SiL knew her mother has a long standing fear of authority and would be horrified at having to appear in court. My second question is whether a solicitor can ever be considered to be complicit in the offences of their clients if they take particularly aggressive actions knowing such actions were unjustified, or whether they can simply wash their hands and say they were just acting on client instruction?

Thanks!

[des8]

hi, sorry to hear of your family problems.
I'm afraid there always seems to be one who will take advantage of the others.

I very much doubt there is anything to be done about your SiL's solicitor as he does not IMO seem to have done anything illegal.
He was acting on his client's instructions in a civil case, so the matter of guilt does not arise.
Your opinion as to how she was funding her case is also of no concern.
There has been no criminal case, so no proof of theft.

So someone warned him not to commence civil action ... why would he heed such a warning, that has no authority?
And as for being "aggressive"... possibly forceful, but a solicitor is expected to be very pro active on behalf of their client.

You query the possibility of initiating a court action against this solicitor.
Even supposing it was a viable option, presumably it would be in your mother's name as it is her money that has been taken?
That would involve your mother appearing in court, which you indicate is not something she would not be happy with.

I honestly fear that pursuing this solicitor will only cause more stress and heartache for your family.

[YorkshireMan]

Thanks for the reply. On the aggressive behaviour, I don't have an issue with a solicitor forcefully putting his case and would expect nothing less. I was just trying to establish whether there is a line beyond which a solicitor would be considered to have acted precipitously or unprofessionally given the nature of a particular case, vulnerability of victim etc. OR can they behave pretty much how they want with complete impunity? If the answer is the latter, then so be it - at least I know for the future.

On the money side, I know a solicitor is obliged to consider if they are being paid from the proceeds of crime in a money-laundering sense. I'm just trying to establish if the same principle definitely applies to being paid with dishonestly obtained money generally. i.e. I'd have *thought* that a solicitor should consider the possibility in a case like this regardless of whether there has been a conviction of their client - and take steps to assure themselves that the money is legit. Being paid with money stolen from the person you're taking action against seems like a fairly big conflict of interest to me. If the solicitor has actually done some checks and can present notes to that effect, then he clearly has no case to answer.

I'm not concerned at raising a claim in the small claims court as I can act as Lay Representative for MiL so long as she is happy to attend with me and I think she would be as it's the last remaining injustice that hasn't been put right. I'm just trying to understand whether there is enough legal basis.

[des8]

s.329 of the Proceeds of Crime Act 2002 (POCA), gives a person a defence of being in possession of the proceeds of crime if acquired by providing adequate consideration. In this case the services provided by the solicitor would be adequate consideration.


The fact that you and your relatives are convinced of the theft, and that the solicitor was paid with misappropriated funds, are IMO insufficient for a successful claim because he was being paid for providing services

You say that his client's decision to settle out of court and pay compensation should have removed all doubt over her guilt in his mind, but this is not certain, (and anyway is a red herring)
From your post I understand your MIL initiated a claim against SIL
SIL initially defended and counterclaimed,
Eventually SIL and MIL agreed an out of court settlement to MIL's claim and SIL withdrew the counterclaim.
There is nothing in that which would cause a solicitor to question his client's funding source.
Claims and counterclaims are regularly discontinued and out of court settlements reached without either party having to prove their funding.

Be interesting to see what the wording of your proposed Particulars of Claim would be

[YorkshireMan]

No - it was SiL who instigated court action to evict MiL. There had been several weeks of dialogue between solictors beforehand, and SiL's solictor knew the basis of the Letter of Claim that was about to land which was that a Proprietary Estoppel had arisen due to the promises made to Mil by SiL. He had already had to concede SiL was in severe debt prior to MiL bailing her out, and had also conceded that SiL had access to MiL's bank accounts, and had also been told that MiL had very poor sight and was blind in one eye. He had been sent a copy of a historic unregistered EPoA that SiL had signed some years earlier and clearly forgotten about and certainly never used - that obliges SiL to act in MiL's best interests and keep records (which she didn't). He had also been shown the records of MiL's bank accounts showing that after MiL had sold her flat, paid off about 80K of SiL's debts, and moved into a spare room in SiL's house (supposedly until the extension was built) about 2.4K/per month was disappearing out of MiL's bank accounts into SiL's accounts over the 18 months she was living with SiL.

The problem was MiL had not formalised and had properly witnessed any of the commitments SiL had made to her about building the extension and providing her with a home for life (but there was plenty of supporting evidence the rest of the family could provide). SiL just denied everything and claimed no commitment of any kind had been made, and claimed she had not taken any money without MiL knowledge or permission and kept MiL fully informedof her finances. MiL reckons she was asked for money from time time (e.g. to help around Christmas), but nothing like the frequency SiL was taking it - which was pretty much weekly. It was being spent on leasing nice new cars and all sorts of other luxuries that SiL couldn't possible afford on her income. The bullying and intimidation started when (unknown to MiL), SiL had cleared her out of virtually all her remaining savings so wouldn't have been able to fund the promised extension - so was effectively stuck with MiL in the house.

In short, the entire story from SiL was laughably implausible, and she was unable or unwilling to give any detailed answers, records or agreements to support her own denials. So why the rush to take legal action? The only answer can be to deliberately bully and intimidate an 82 year old half blind old lady who SiL knew would be absolutely terrified of being taken to court - and was. This solicitor will have been fully aware of what he was being instructed to do and why - so my question still stands as to whether there is any line to cross. I am aware that the Supreme Court has ruled in recent years that malicious prosecution can now apply to civil cases - but I'm not clear whether a legal professional who progresses a case knowing it to be meritless and malicious can face any action.

The barrister who was just finalising the letter of claim ready to issue it - just turned it into a full defense and counterclaim against the eviction. The eviction paperwork was just a simple possession order and didn't detail any of the background whatsoever - it was as if SiL was evicting an unwanted lodger. Judge ordered SiL to respond to the counterclaim (which she did by making up all sorts of other implausible stories and false accusations), stayed the case and ordered her to attempt ADR, and moved it to multi-track. The settlement was SiL had to sell her house (stipulated in a Tomlin order) and paid MiL tens of £thousands in compensation from the proceeds.

Now I'm prepared to accept that in the early stages, SIL's solicitor may genuinely have thought he was being instructed on a straight forward eviction and I have no issue with him keeping his fees from that period. But as the case unfolded, he will have seen his client being accused of a very serious fraud by abuse of position, and was clearly in very serious dept prior the events in question. I simply cannot accept that he wouldn't think to question how he was being paid.

[des8]

If you think one judgement in the Supreme Court opens up the possibility of civil malicious prosecution in this case, IMO you are oversimplifying matters.
Firstly read the judgement (all 67 pages and note how split the judges' opinions were (https://www.supremecourt.uk/cases/do...4-judgment.pdf)

Then remember that the parties to the litigation were your MIL and SIL, not the solicitor.
.The SC held that a claimant bringing a malicious prosecution claim needs to establish two things, that:

1. Proceedings were brought without reasonable and probable cause
2. the party bringing proceedings did so maliciously

You would need to show the solicitor more than actively encouraged your SIL in her actions
What does your solicitor think?

[YorkshireMan]

Trouble is I'm having to look at it knowing full well it was malicious which doesn't help! SiL is a thoroughly nasty piece of work and it is precisely the sort of thing she does when she doesn't get her own way. The bullying and intimidation prior to action was so nasty (and witnessed), it had to be seen to be believed. But there is also the question of what the legal action was for, if it wasn't purely malicious. SiL was in mediation and agreeing to compensate within a couple of weeks - so all the legal case achieved was completely unnecessary cost on both sides. I do understand where you're coming from though - as it COULD be the case that SiL's solicitor encouraged ADR, strongly discouraged the action, and maybe even asked questions about his fees - but I have no way of finding out. So perhaps that is my question now answered - that there is simply not enough clear evidence to risk bringing a case. Thanks for taking the time to focus my mind a little more.