Recent RICS decisions in dishonesty cases show that engagement is imperative

RICS’ Published Regulatory Outcomes from this summer include two cases of dishonesty resulting in very different sanctions. It is often assumed that, if dishonesty is found proved, a professional will always be expelled from their regulatory body (and that is often the case). However, the different outcomes in these cases demonstrate that engaging with the process, attending the hearing and submitting evidence in mitigation can make all the difference to the final outcome, even in a dishonesty case.

Case 1: signature forging and limited engagement = expulsion

In Mr S’s case, after falling out with his business partner (the Complainant in this case), Mr S forged the Complainant’s signature on two tender submissions in order to satisfy a dual signing requirement in the tenders. The Panel found that the Complainant had agreed to his digital signature being used by the Member on some occasions prior to the breakdown of their relationship. However, the Panel determined that there was a material difference between (1) applying a scanned, but otherwise authentic digital signature, and (2) purporting to sign in ink as somebody else. It found that:

“The former may be appropriate, in some circumstances, with the specific consent of the owner of the digital signature, and where properly characterised as no more than the administrative exercise of applying their scanned signature. The latter does not involve the application of their signature at all, but purporting, falsely, to sign as somebody else.”

The Panel concluded that, while there was at some point an agreement that the Member might use the Complainant’s digital signature, there was no agreement for him to sign, by hand, as the Complainant. Moreover, even if there had been such an agreement, the Panel determined that purporting to sign as someone else in a professional context is, by its nature, always likely to be inappropriate and inherently dishonest.

Mr S chose not to attend the hearing, which he referred to in correspondence with RICS as “contrived” and “unwarranted”. In making its decision in relation to sanction, the Panel considered that there were a number of aggravating factors, “…including the limited engagement demonstrated by Mr. S with RICS and the lack of any real discernible insight or remorse as to the seriousness of the allegations in this case.” It concluded that the concern was “…further exacerbated by the high risk of repetition given the Regulated Member’s lack of insight”. Mr S was expelled from RICS.

Case 2: concealing a fee sharing agreement but full engagement = reprimand and fine

In this case, two Regulated Firms and two Regulated Members faced allegations in relation to concealing a fee-sharing agreement with an estate agent. This was in connection with the Need to Sell (NTS) scheme, under which home-owners in areas around the HS2 rail link were able to apply for HS2 to buy their property at an unblighted price if they had made all reasonable efforts to sell it on the open market at such a price, but this had been impossible because of the HS2 plans. The NTS guidance at the relevant time stated that estate agents who would benefit financially from a sale of the property to HS2 were not permitted to supply evidence for a home-owner’s NTS application.

The Panel found that the fee sharing agreement was intended to get around the NTS guidance (which one of the Members described in an email as “bonkers”) by concealing the financial interest of the estate agent in a sale to the Government. The vast majority of the allegations of dishonesty in relation to this were found proved.

In making its decision on dishonesty the Panel stated:

“Honesty is the bedrock of any profession and therefore any act of dishonesty has the potential to seriously undermine trust in the profession. The dishonesty found by the Panel in this case was a deliberate and planned attempt to avoid the strictures of the new guidance, the consequences of which were clearly evident to [the Regulated Members].”

This kind of language typically precedes a decision to expel the members who have found to be dishonest. Not so in this case, instead the Firms and Members each received a reprimand and a fine.

Firm HP received a reprimand and a £35,000 fine. The Panel stated:

“In light of the mitigation offered on behalf of HP, in particular the fact that this was a single case in an otherwise positive regulatory history and the stark consequences for its employees and clients of a sanction of removal, the Panel concluded that it would not be proportionate to remove the firm’s registration. The inevitable concerns this case raised about public trust and confidence in the surveying profession could, in the Panel’s view, be adequately addressed by the imposition of a reprimand and a significant fine.”

Firm JG received a reprimand and fine of £10,000, the Panel having concluded that this would be sufficient given: “the isolated nature of the complaint and the steps that JG had taken to address the issues identified by the case.”

In relation to Member CRB, despite finding that he was the architect of the agreement which was intended to defeat the NTS guidance, that he disregarded over an extended period the professional values that are the hallmark of RICS membership, and that his actions were aggravated by his position of seniority and responsibility, the Panel imposed a reprimand and a £20,000 fine. In explaining its reasoning, the Panel stated that this case was an aberration in a lengthy career and that it “narrowly concluded” that his conduct was not fundamentally incompatible with continued membership of RICS.

Similarly, in respect of Member RE, despite finding that she had acted dishonestly in a number of respects, the Panel imposed a reprimand and a £5,000 fine, taking into account: “..the isolated nature of the incident and that she was following the plan put in place by CRB, as well as for her undoubtedly difficult personal circumstances at the time coupled with a considerable degree of work pressure.”

It seems safe to surmise, particularly given that the Panel “narrowly concluded” against expulsion for CRB, that expulsion is likely to have been the result for the Members, and removal of registration for the Firms, had they failed to engage in the process, demonstrate remorse and present evidence in mitigation.

While it is likely that a RICS member will be expelled if a finding of serious dishonesty is made against them, the second case shows that this is not inevitable. Panel members are, after all, human. They are far more likely to impose the toughest sanction on an absent Respondent, particularly one who appears not to take the proceedings seriously, than a Respondent who attends the hearing, is polite and courteous throughout and who presents compelling evidence that they have learnt their lesson and would not repeat this behaviour.