Professional Fraud - Managing the Nightmare
It is the nightmare scenario that every professional dreads - the discovery that a trusted colleague, partner or employee has fraudulently taken money from the business' client account.
There are usually two reasons for this deceitful behaviour. The first is that the professional has made a mistake causing a client loss and, afraid to discuss this with a colleague or supervisor for fear of reproach, he decides to cover up the shortfall on the client's account by transferring money from another client's account. This is known as "teeming and lading", essentially robbing Peter to pay Paul.
The other, which is often even more devastating to the trust built up over time in a business, is where the fraudulent professional is effectively stealing from client accounts for his or her own personal gain. It could be that the thief has mounting debts or it is simply a case of greed getting the better of them.
What are the warning signs ?
Often fraud is discovered simply by chance but there are certain recurring themes that can suggest everything is not entirely as it may seem.
- An unusually large number of write offs of fees or disbursements may suggest that some financial juggling has taken place.
- A colleague may appear to be living a lifestyle well beyond his means, which suggests either additional income from somewhere or the possibility of debt which needs to be serviced.
- An inappropriate refusal to discuss client matters or to "gloss" over a client's reported dissatisfaction may also suggest problems behind the scenes.
- Colleagues who appear reluctant to go on holiday (thereby leaving their files unattended and open to scrutiny) may also be viewed with some suspicion.
It is almost impossible to entirely eradicate the possibility of fraud within the professional practice but there are steps that can be taken to minimise the risk.
- Encourage a "no blame" culture within your practice - everyone makes mistakes but they can often be rectified if dealt with quickly. One person's nightmare file can be another's challenge and file swapping can be helpful in certain circumstances.
- Do not forget that it can just as easily be the most senior professional in a practice that turns to fraud - they may feel that they cannot share their mistakes with others because of their elevated position and therefore seek to cover them up illegally. Alternatively, it may be that they simply have the opportunity, because people are less likely to challenge them. More junior staff who have suspicions, must therefore know that their concerns will be taken seriously, if raised.
- The best policy to avoid fraud in a professional practice is to employ a policy of continuous peer file review.
- Ensure that your office accounting procedures are such that individuals do not have access to substantial sums of money and, that where possible, when joint authorisations are required for financial transactions, they come from separate parts of the business, to reduce the risk of collusion. The recent introduction of certain procedures under the Money Laundering legislation (see Volume 2 Issue 1 of Acclaim) will no doubt assist those in the regulated sector (solicitors, accountants and estate agents, for example), both specifically, in identifying clients capable of collusion and fraud, and generally, due to the prevailing climate of suspicion.
If the nightmare becomes real, despite you implementing the above measures, what steps should you take upon the discovery of a fraud ? Action is required to ensure that six principal objectives are met:-
Face up to the problem - ensure that the problem is dealt with swiftly and decisively - once sufficient evidence has been collated, the person under suspicion must be challenged and suspended, pending further enquiries and investigation. Any suspension should be in accordance with your organisation's disciplinary policies and procedures and any applicable professional regulations. Note the fraudster must not be allowed any further access to files, accounts etc and key evidence should be secured to enable a forensic exercise to be carried out.
Recovery - all protective measures should be taken to ensure that as far as possible, recovery from the fraudster's assets can be made. Any delays in seeking an order freezing such assets will threaten the likelihood of the court granting an order, so move quickly.
Alert all relevant bodies. Your professional indemnity policy is likely to cover you against claims made by clients who have suffered loss as a result of the fraud(s), unless you have condoned or assisted the fraudster. Notify your insurers immediately to ensure maximum protection under the policy. Also advise the police - notwithstanding the desire or otherwise of a practice to contact the police, one has an obligation, in any event, to make a formal report to NCIS under the anti money laundering regulation. Do, however, ask the police to liaise with you with regard to recovery. Specialist legal advisers dealing with fraud matters will often have a good working relationship with the police because of the latter's sometimes limited resources, they may be happy to allow the lawyers to pursue civil recovery before impounding documents and other crucial evidence.
Understand your obligations - client accounts affected by the fraud will need to be rectified and interest paid - liaise with your professional/regulatory body to ensure that you comply with their requirements.
Deal with the problem in a professional and positive way. The press are likely to become aware of and report on the matter and clients will become concerned. A brief but reassuring press release should be arranged and clients should be advised individually that following a full investigation, rectification of any shortfalls will be made in full as per your professional obligations.
Specialists - seek advice from specialists who are used to dealing with such matters and who have sufficient resources to deal with the investigation and recovery aspects in a short period of time. Specialist lawyers will also have a network of experienced forensic accountants and counsel who can assist.
Watson Burton has a specialist commercial and professional fraud team. If you have any concerns or queries in this area of law, please contact Richard Palmer on 0191 244 4302.