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Annual Report 2015 The Scottish Solicitors Discipline Tribunal

Constituted under the Solicitors (Scotland) Act 1980 as amended

for the period 1 November 2014 to 31 October 2015

The Scottish Solicitors Discipline Tribunal – Annual Report 2015

Annual Report 2015

The Scottish Solicitors Discipline Tribunal

Chairman Alistair M Cockburn

Vice Chairmen Colin Bell (as from 9 June 2015)

Dorothy M Boyd

Alan McDonald

Malcolm McPherson

Nicholas Whyte (as from 9 June 2015)

Lay Members’ Representative

Andrew Jones

Clerk Judith V Lea

Depute Clerks Audrey Watson

Marjorie Socha

Administrative Assistants Rachel Graham

Maxine Smith

Solicitor Members Benjamin Kemp

Eric Lumsden

Gillian Mawdsley

Douglas McKinnon

Graeme McKinstry

Kenneth Paterson

Lay Members Edward Egan (Member from July 2015) Julius Erolin

Professor Kay Hampton

Paul Hindley

Irene Kitson

Rosemarie McIlwhan

Dr Kenneth Mitchell

Elaine Noad, OBE (Member until 9 June 2015) Martin Saville

Ian Shearer

Lisa Tennant

Catriona Whitfield


CHAIRMAN’S INTRODUCTION

Details of the Tribunal’s workload over the past 12 months are set out

in this report. The Tribunal has once again had a very busy year. The

Tribunal has been dealing with a number of Complaints which involve

Secondary Complainers and has recently prepared guidance for

Secondary Complainers to try and assist them in dealing with their

compensation claims.

The Tribunal’s new website was launched on 14 September 2015 and contains all Tribunal

Findings that have been given publicity within the last 10 years. The Findings are fully

searchable. The website also contains a lot of useful information about the operation of the

Tribunal.

Tribunal hearings are generally held in public, usually at The Scotsman Hotel, Edinburgh.

Forthcoming substantive Tribunal hearings are detailed on the diary part of the website

and are usually put on a week in advance of the hearing.

This report highlights some interesting issues which have arisen in cases during the year.

The Appendices at the end of the report provide summaries of all the cases that have been

given publicity, listed under case type.

Elaine Noad, an extremely valuable lay member retired from the Tribunal in June 2015 due

to family commitments. Her contribution will be missed. I welcome our new lay member,

Edward Egan.


I would like to express my thanks to my Vice Chairmen, Lay Members’ Representative, all

the Tribunal members, the Tribunal Clerk, the Depute Clerks and the Tribunal

administrative assistants for their invaluable help and support during the year.

My particular thanks to Rachel Graham for her input into the development of the

Tribunal’s new website and the re-design of the Tribunal’s Annual Report.

Alistair M Cockburn

Chairman


LAY MEMBERS’ REPRESENTATIVE -

ANDREW JONES Lay members play an important role in maintaining public

confidence in the legal profession. We are drawn from a variety of

backgrounds and work alongside our legal colleagues in Tribunals.

This year, we have had to deal with a wide range of issues, including

more CML cases coming before the Tribunal.

In 2015, I have helped improve communications to stakeholders through working with SSDT

executives to develop a new website for the Tribunal. This work is now complete, and the site

provides a comprehensive guide to the Tribunal’s work. In addition, an interactive section for

members has been developed which allows for more efficient administration of our work.

Furthermore, we have consulted and overseen work to clarify guidelines for Lay Complainers.

This is an important area and I have been keen to ensure that Lay Complainers fully

understand the process, potential cost, and the need to provide the detailed information

required by the Tribunal to assess their claim.

We have welcomed a new appointee, and helped integrate him into our work and I am

confident he will find our work both challenging and stimulating in the coming years.

Andrew Jones

Lay Members’ Representative


CONSTITUTION

The Scottish Solicitors’ Discipline Tribunal is an independent Tribunal constituted under the

provisions of sections 50–54 of and Schedule 4 to the Solicitors (Scotland) Act 1980 (the 1980

Act) as amended in particular by the Legal Profession and Legal Aid (Scotland) Act 2007 (the

2007 Act). The Tribunal sits with two Solicitor members and two lay members. The Tribunal

is independent of the Law Society of Scotland with none of the Solicitor members being on the

Council of the Law Society. The lay members are drawn from a wide variety of backgrounds.

All Tribunal members are appointed by the Lord

President. The Tribunal presently has 12 Solicitor

members and 12 lay members. The Tribunal

operates under the Scottish Solicitors’ Discipline

Tribunal Procedure Rules 2008 (the 2008 Rules)

and a copy of these rules is available on the

website.

GENERAL

Tribunal hearings continue to be held in public, normally at The Scotsman Hotel in Edinburgh.

The diary part of the Tribunal website details the substantive business scheduled to be heard

but not procedural business. In certain cases, business is not put into the diary if the hearing is

to be held in private.

The new Tribunal website at www.ssdt.org.uk includes details of Tribunal members, Tribunal

rules, Tribunal annual reports, general information on the workings of the Tribunal, guidance

notes and Tribunal Findings. On the new website, the Tribunal Findings are fully searchable

and Findings going back 10 years are available. Members’ CVs are also available on the


website. Findings subject to deferred publicity or which are under appeal to the Court of

Session are not put on the website until any criminal proceedings are concluded or until the

appeal has been concluded. Tribunal Findings usually go on the website approximately three

months after the date of the Tribunal hearing.

The Tribunal dealt with one case during the year under the old rules.

TRIBUNAL BUSINESS The Tribunal sat on more days than in the previous year.

Complaints being dealt with by the Tribunal are becoming more

complicated and often involve one or more Secondary Complainers

who have compensation claims.

The Tribunal deals with the following types of business:

1. Complaints about professional misconduct by a Solicitor.

2. Complaints under section 53(1)(b) of the 1980 Act.

3. Applications for Restoration to the Roll of Solicitors/Applications to remove a

restriction on a practising certificate.

4. Appeals by Solicitors against a finding made by the Law Society of unsatisfactory

professional conduct (section 42ZA(9) Appeals).

5. Appeals by Lay Complainers against the failure by the Law Society to make a

finding of unsatisfactory professional conduct (section 42ZA(10) Appeals).

6. Appeals by Solicitors or Lay Complainers against the extent of any award of

compensation or the failure to award any compensation (section 42ZA(11) Appeals).


THE TRIBUNAL’S

VALUES & OBJECTIVES To ensure so far as possible that all cases brought before the Tribunal are dealt with in

accordance with the legislative framework and the principles of natural justice, bearing in

mind the importance of protecting the public from harm and maintaining public confidence in

the legal profession. The Tribunal will endeavour to deal with cases efficiently and

expeditiously. The Tribunal has a duty to be independent, impartial and transparent.

31

3

0

2 1

0 0

5

10

15

20

25

30

35

Complaints

about

Professional

Misconduct

Complaints

under section

53(1)(b)

Applications Appeals under

section

42ZA(9)

Appeals under

section

42ZA(10)

Appeals under

section

42ZA(11)

Types of Cases lodged with the Tribunal


THE TRIBUNAL PROCESS

Complaints of Professional Misconduct

The Tribunal will receive a Complaint from the Law Society Fiscal which will then be served

upon the Respondent. The Respondent has three weeks in which to lodge answers (although

extension of time for lodging answers requests are often received and are sometimes granted

provided there is a valid reason). The matter will then be set down, either for a procedural

hearing, a preliminary hearing or a substantive hearing. Procedural hearings are used to

clarify whether or not there are any preliminary issues and identify whether evidence is going

to be required. Preliminary hearings are set down where there are preliminary points which

have to be decided before the Complaint can proceed to a substantive hearing. These usually

take place by way of a debate. At a substantive hearing the Tribunal will either proceed to

make a finding of professional misconduct, find the Respondent not guilty of professional

misconduct or remit the matter to the Law Society under section 53ZA on the basis that the

Tribunal considers the Respondent’s conduct may amount to unsatisfactory professional

conduct.

Secondary Complainers

If there is a Secondary Complainer involved in the Complaint they only become a party to the

proceedings after a finding of professional misconduct is made. Prior to any finding of

professional misconduct, Secondary Complainers have no direct input into the Tribunal

process. If a finding of professional misconduct is made and if the Secondary Complainer has

Statistic

Findings of Professional Misconduct made:

In 2014 were – 24

In 2015 were - 25


requested compensation, it will be up to the Secondary Complainer to provide the Tribunal

with the necessary evidence. The Tribunal will then decide whether or not it is appropriate to

make an award of compensation in favour of the Secondary Complainer. There can be cost

implications for the Secondary Complainer if additional Tribunal time is required to deal with

their claim and an award is not made in their favour. The Tribunal cannot give Secondary

Complainers advice but does understand that it can be difficult for Secondary Complainers to

deal with the formal Tribunal procedures and guidance notes are now available on the

website.

Section 42ZA Appeals

The Tribunal receives the Appeal either from the Solicitor or from a Lay Complainer. Lay

Complainers when making an Appeal under section 42ZA often have difficulty in focusing

their Appeal and setting out clearly and succinctly what their grounds of Appeal are. The

Statistic

From the Compensation Claims dealt with by the Tribunal this year:

5 Compensation Orders were made

17

13

0

5

10

15

20

Complaints involving Secondary

Complainers

Complaints with No Secondary

Complainers

Complaints received under 2008 Rules

involving Secondary Complainers


Appeal should identify any error of fact or law made by the Law Society. The Appeal will be

served on the Law Society and the Solicitor/Lay Complainer and three weeks are allowed for

the lodging of answers. Again there may be circumstances when an extension of time for

lodging answers is given.

Lay Complainers and Section 42ZA Appeals

The Tribunal cannot give Lay Complainers advice with regard to the making of their Appeals.

The Tribunal however does understand that it is difficult for Lay Complainers to deal with the

formal Tribunal process and guidance notes have been made available on the Tribunal’s

website. If Lay Complainers are unable to put their Appeal in the proper form, despite having

been given a warning in terms of Tribunal rule 23 and being given the opportunity to amend,

the Appeal may be struck out as being manifestly unfounded. Procedural hearings are usually

held for section 42ZA Appeals so that it can be clarified whether or not the matter is to proceed

by way of submissions or whether the facts are in dispute. Sometimes there are three parties

to 42ZA Appeals being the Appellant, the Law Society and the Solicitor/Lay Complainer, in

whose favour the Law Society previously made a Determination. There have been less 42ZA

Appeals this year.

Statistic

The Tribunal received 3 Appeals under Section 42ZA this

year


INTERESTING CASES

THROUGHOUT THE YEAR

Appeals to the Court of Session

There were four Appeals to the Court of Session against

decisions of the Tribunal made during the year. In one of

these Appeals the Respondent appealed both the Tribunal’s

finding of professional misconduct and the Tribunal’s

sentence. The matter was considered by the Court of Session

on 3 November 2015 and the decision was issued in

December 2015.

Another Respondent appealed the sentence of the Tribunal, being a Censure and a fine of

£7,500 to the Court of Session. The Tribunal had found the Respondent guilty of professional

misconduct in respect of his failure to adequately supervise his employees who had failed to

abide by established practice and the duties which they owed to their clients, being the

heritable security lenders, and in particular, failure to report to lenders the unusual

circumstances and a failure to comply with the CML Handbook. The Appeal was heard by the

Court of Session on 28 May 2015 and the Respondent’s appeal was refused. The Court made it

clear that the Tribunal did not fall into any material error and that the sanction imposed was

an appropriate one in the whole circumstances.

In relation to the third appeal, the Respondent appealed against the Tribunal’s sentence

restricting his practising certificate for a period of two years. This appeal was sisted for a


period of three months and at the time of writing this report, there was no decision by the

Court of Session in respect of this appeal.

The fourth appeal was in relation to a Section 42ZA Appeal. The Tribunal had heard an

Appeal under Section 42ZA(10) in connection with the decision by the Law Society of Scotland

not to uphold a complaint of unsatisfactory professional conduct against a Solicitor. The

Tribunal confirmed the Determination of the Law Society of Scotland and the Appellant has

appealed this decision to the Court of Session. The Appellant applied for legal aid which was

refused and the Scottish Legal Aid Board (as at the time of writing this report) was in the

process of determining the Appellant’s review application.

Judicial Review

There was one application for Judicial Review against a Tribunal decision during the year.

The Tribunal had issued a procedural decision in respect of an Article 6 preliminary plea. The

Respondent wished to appeal this decision prior to the Tribunal going on to consider whether

or not the Respondent’s conduct amounted to professional misconduct. Prior to the Legal

Profession and Legal Aid (Scotland) Act 2007, there was a right of appeal against a procedural

decision of the Tribunal issued after a legal debate where the result of the decision may have

the effect of discharging the Complaint. Since the implementation of the 2007 Act however the

appeal rights are more restrictive and there is no longer any such right of appeal. In these

circumstances the Respondent took Judicial Review of the Tribunal’s decision. The matter was

heard by the Court of Session on 5 November and the Judicial Review application was

rejected.


Section 42ZA Appeals

The Tribunal dealt with an interesting Appeal under section 42ZA(10) where there was no

dispute about the facts and all the Tribunal had to decide was whether or not the

Determination made by the Law Society Sub-Committee was a decision that a reasonable Sub-

Committee could have made. The Tribunal considered that the Law Society decision was a

reasonable decision but the Appellant has appealed this matter to the Court of Session. In an

Appeal under Section 42ZA(9) an Appellant Solicitor had been found guilty of unsatisfactory

professional conduct by the Law Society on the basis that the Law Society concluded he had

made a false representation in a tender for client services. The Tribunal considered that the

evidence did not support that finding and accordingly allowed the Appeal.

0

1

2

3

4

Appeals under

section 42ZA(9) Appeals under

section 42ZA(10) Appeals under

section 42ZA(11)

2

4

0

Section 42ZA Appeals dealt with by the

Tribunal


Cases resulting in no finding of professional

misconduct but remitted

under Section 53ZA of the 1980 Act

In one case a Respondent had taken three Wills with him from one firm to another, where he

was sole executor, without seeking instructions from the testator. The Wills had been returned

immediately his actions were called into question and there was no issue of dishonesty. The

Tribunal found him not guilty of professional misconduct but considered that the conduct may

amount to unsatisfactory professional conduct and accordingly remitted the matter to the Law

Society.

In another case the Tribunal heard evidence over a number of days and found that the

Respondent had removed files from her firm’s partnership office. The Tribunal accepted that

when she removed the files she thought that this would be temporary depending on the

outcome of sequestration proceedings against her partner in the firm. The Tribunal found that

the Respondent’s partner had, through his conduct, indicated that he was not prepared to be

bound by his obligations as a partner and that this destroyed the required trust and confidence

that must exist in a partnership. The Tribunal found that it was difficult to expect that the

innocent partner should act with propriety to the benefit of the partner who acts improperly,

provided always that the client’s interests are protected and any real risk to clients is properly

managed and controlled. In the particular exceptional circumstances of this case the Tribunal

did not find that the Respondent’s actions in taking the files was dishonest and accordingly

did not make a finding of professional misconduct. The Tribunal however considered that the

Respondent’s conduct may amount to unsatisfactory professional conduct and remitted the

matter to the Law Society.


Cases under Section 53(1)(b) of the 1980 Act

If a Solicitor is convicted of an offence of dishonesty or sentenced to a period of imprisonment

of more than twelve months, Section 53(1)(b) applies and there is no requirement for the

Tribunal to make a finding of professional misconduct before applying its sanctions. During

the year the Tribunal dealt with one Respondent who was convicted of a charge of

embezzlement and another Respondent was convicted of offences contrary to the Proceeds of

Crime Act 2002 and sentenced to a period of four years, six months and six months to run

concurrently. Both Respondents had their names struck from the Roll of Solicitors in Scotland.

Statistic

Complaints under Section 53(1)(b) received:

In 2014 were – 2

In 2015 were - 3


Findings of Professional Misconduct

There were again a number of cases dealt with by the Tribunal during the year which involved

inter alia failure to comply with the CML Handbook. These are all included in the Appendices

attached to this report apart from any subject to deferred publicity or which are currently

under appeal. The Tribunal consider it unfortunate that these type of cases are still coming to

the Tribunal, albeit that the conduct in a number of these cases occurred some time ago.

A Failure to reply to Law Society and/or clients.

B Conflict of interest.

C Failure to deal with trust/executry in a proper manner.

D Failure to deal with court proceedings and prosecuting claims in a proper

manner.

E Failure to complete conveyancing procedures in a proper manner.

F Excessive delay.

G Failure to implement mandates.

H Misleading the Law Society and/or other parties.

I Failure to comply with the Accounts Rules and/or Practice Rules.

J Failure to comply with other professional obligations.

K Other conduct unbecoming a Solicitor.

L Dishonesty.

M Money laundering.

A (5)

9% B (1)

2% C (4)

7%

D (3)

5%

E (5)

9%

F (2)

4% G (1)

2% H (2)

4% I (12)

21%

J (10)

18%

K (3)

5%

L (4)

7%

M (4)

7%

Principal Grounds on which Misconduct Established

(misconduct can be established on more than one ground)


One Respondent was found guilty of professional misconduct in respect of his breach of rule

21 of the Solicitors (Scotland) Accounts Rules because he borrowed money from his client who

was not in the business of lending money, without any loan documentation and without

advising his client to get independent advice. What concerned the Tribunal in this case was

that the Respondent appeared still not to understand that there was anything wrong with this.

A Solicitor should not enter into any contract or transaction with his client where his own

personal interests may be in conflict.

The Tribunal dealt with a case which involved a Respondent entering into a sexual

relationship with a vulnerable client. The Tribunal found this a very difficult and unfortunate

case. The Solicitor allowed his independence to be impaired and failed to act in the best

interests of his client by allowing his own personal interests to influence his actings on behalf

of his client thereby creating a potential conflict of interest situation and failing in his duty of

utmost trust and confidence. The Solicitor in this case committed a serious error of judgment

by continuing to act.

In another case, the Respondent had been instructed to represent a client in respect of a

slopping out case and despite another firm of Solicitors taking over representation and

forwarding a mandate, the Respondent accepted an offer of settlement from the Scottish

Government despite no longer acting for his client. He also delayed for 10 months in

accounting to the Secondary Complainer for the funds received in settlement of the court

action. The Tribunal found the Respondent’s cavalier approach to the case suggested that he

was a danger to the public and imposed a restriction on his practising certificate. The Tribunal

also made an award of compensation in favour of the Secondary Complainer. This matter was

appealed to the Court of Session. The Court of Session issued its decision in December 2015.

The Court upheld the Tribunal’s finding of professional misconduct but substituted a fine of


£3,000 in place of the restriction on the Respondent’s practising certificate and reduced the

amount of compensation awarded to the Secondary Complainer.

In another case, the Tribunal found a Respondent guilty of professional misconduct in respect

of his deliberately and repeatedly securing from clients of his firm cash payments which he

thereinafter retained for his own personal use. The Respondent was brought from prison to

appear before the Tribunal and had his name struck from the Roll of Solicitors. The client

account must be kept sacrosanct at all times and whatever pressure a Solicitor is facing, there

is no excuse for taking clients’ money to which a Solicitor is not entitled.

Another Solicitor was unfortunately found guilty of professional misconduct inter alia in

respect of his embezzlement of a sum of £1,040,000 from the Bank of Ireland. The Respondent

did not appear at the hearing and the Tribunal had no hesitation in striking his name from the

Roll of Solicitors in Scotland. The Respondent’s conduct was clearly dishonest and there is no

place on the Roll of Solicitors for a Solicitor who acts in this way.

Another Solicitor was found guilty of professional misconduct in respect of engaging

repeatedly in a scheme designed by him to recover money from the Scottish Legal Aid Board

to which he was not entitled. The Respondent later re-paid all the overpayments but the

Tribunal considered that as the Respondent had engaged in deliberate and dishonest course of

conduct over a period of two years, he was not a fit person to be a Solicitor and struck his

name from the Roll.

The Tribunal dealt with three cases during the year where conduct which occurred in the

Respondents’ personal lives brought them before the Tribunal. One Respondent was found

guilty of professional misconduct in cumulo in respect of her convictions for contraventions of

Section 103(1)(b) and 143(1) and (2) and Section 47(1) of the Road Traffic Act 1988 and another


conviction in terms of Section 143(1)(2) of the Road Traffic Act 1988. The Tribunal considered

that such conduct brings the profession into disrepute and represents a serious departure from

the standards expected of a member of the profession, in particular with regard to the breach

of a court order. The other Respondent was found guilty of professional misconduct in respect

of her being convicted twice in relation to drink-driving offences. The Respondent got behind

the wheel of a car on two occasions when she should not have been driving and failed to

cooperate with the authorities in relation to providing breath tests. The Tribunal considered

that the public would regard these offences committed by a Solicitor as a matter of serious

concern and considered that it was conduct which would likely to bring the profession into

disrepute. The Tribunal however Censured the Respondents in both of these cases. The other

Respondent was found guilty of professional misconduct in respect of his company and

himself being disqualified for the maximum period the regulator, being the Traffic

Commissioner, could impose. The Tribunal was concerned by the Respondent’s lack of

supervision and control of his business which although not directly related to his legal practice

is cause for concern. He was Censured and Fined £1000.

Secondary Complainers

There have been a number of cases dealt with by the Tribunal during the year involving

Secondary Complainers. The Tribunal has recently introduced guidance for Secondary

Complainers which is sent out to Secondary Complainers by the Law Society Fiscal at the time

that the Complaint against the Respondent is being drafted. It is hoped that this will make

matters easier for Secondary Complainers. The Tribunal finds that Secondary Complainers

often come along to the Tribunal ill-prepared and sometimes with unrealistic expectations

with regard to compensation that the Tribunal may be able to award. The Tribunal can only

consider an award of compensation after any finding of professional misconduct has been

made and can only award compensation if it considers that the Secondary Complainer has

been directly affected by the Respondent’s misconduct. The Tribunal has issued guidance with


regard to what type of evidence the Tribunal will require to substantiate a claim. The Tribunal

is considering whether the best way of dealing with the matter is to have the Secondary

Complainers’ claim for compensation dealt with at a future date to be fixed after a finding of

professional misconduct is made against the Respondent.

Censure (5)

18%

Censure &

Compensation (0)

0%

Censure & Fine (5)

18%

Censure, Fine &

Compensation (1)

4% Censure &

Restriction (3)

11%

Censure,

Restriction &

Compensation (4)

15%

Censure,

Restriction & Fine

(0)

0%

Suspended (1)

4%

Suspended &

Compensation (0)

0%

Struck Off (8)

30%

Struck Off &

Compensation (0)

0%

Sentences Imposed in Respect of Findings of Professional

Misconduct and section 53(1)(b)


0

5

10

15

20

25

Sole Practitioners Partnerships or Employed Unknown

Distribution of Solicitors Convicted or Found Guilty of

Professional Misconduct and section 53(1)(b)

0

1

2

3

4

5

6

7

8

Glasgow Other

Strathclyde &

Ayrshire

Edinburgh Other Lothian &

Borders

Grampian,

Highland &

Islands

Tayside, Central

& Fife

Location of Solicitors Convicted or Found Guilty of

Professional Misconduct and section 53(1)(b)


PUBLICITY In terms of paragraph 14 of and Schedule 4 to the 1980 Act as amended, every decision of the

Tribunal is published in full, subject to the terms of paragraph 14A. Once the written Tribunal

Findings are intimated to parties, three weeks are allowed for an Appeal and at the end of this

three-week period, if there is no Appeal, publicity is given to the decision. The Tribunal’s

normal practice is to put abbreviated Findings on the website. Occasionally publicity is

deferred, for example if a criminal prosecution is pending.

EXPENSES The Tribunal has the power to award expenses in terms of Schedule 4 to the 1980 Act.

Expenses are usually awarded to the successful party and include the expenses of the

Tribunal. Last-minute adjournments can result in an unnecessary increase in expense.


STATISTICS FOR THE YEAR

TO 31 OCTOBER 2015 Year to 31/10/15 Year to 31/10/14

Number of days on which the Tribunal met to hear

Complaints

41 37

Business received during the Year

Year to 31/10/15 Year to 31/10/14

Number of Complaints received under the 2005

Rules

1 2

Number of Complaints received under the 2008

Rules

30 27

Complaints containing a report under section

53(1)(b) of the Solicitors (Scotland) Act 1980

3 2

Miscellaneous Applications

0 2

Appeals under section 42ZA of the Solicitors

(Scotland) Act 1980 received

3 9

Business outstanding or partly heard at end of the

year

29 30


Business dealt with during the Year

Year to 31/10/15 Year to 31/10/14

Number of cases heard and decisions/Interlocutors

issued

40 40

Findings of professional misconduct

25 24

Findings under section 53(1)(b)

2 2

Not Guilty Decisions

0 3

Not Guilty and Remitted to the Law Society

3

Complaints withdrawn or dismissed

2 2

Section 42ZA Appeals withdrawn or dismissed

4 2

Section 42ZA Appeals allowed

2

Decision on application for restoration to the Roll or

removal of restrictions on practising certificate

1 1

Procedural Decisions

1 4


Appeals to the Court of Session

Year to 31/10/15 Year to 31/10/14

Appeals to the Court of Session lodged during the

year

4

1

Applications for Judicial Review

1

0

Appeals to the Court of session concluded during the

year:

Appeals remitted

Appeals refused/abandoned/dismissed

Appeals heard

Successful appeals

0

1

1

0

0

1

1

0


FINANCIAL INFORMATION Year to 31/10/15 Year to 31/10/14

Total costs of the Tribunal

(including lay members’ costs)

£176,110.61 £174,182.83

Costs per court

£4,295.38 £4,707.64

Costs recoverable from Respondents

£77,901.92 £87,533.68

Costs per Solicitor with a practising certificate

(this excludes lay members’ costs which are paid for

by the Scottish Government)

£13.10 £13.34

Costs per Solicitor with a practising certificate if all

recoverable costs were received from Respondents

£6.06 £5.20


APPENDICES INDEX Summaries of Decisions relating to Findings of Professional Misconduct and

Complaints under section 53(1)(b)

Summaries of Decisions in respect of Findings relating to Complaints under

section 53(1)(b).

Summaries of Decisions in respect of Findings of professional misconduct

where the main issues were failure to comply with the Council on Mortgage

Lenders Handbook, failure to comply with the Practice Rules and/or failure to

comply with the Money Laundering Regulations.


relating mainly to conduct unbecoming of a Solicitor.

Summary of Decision in respect of Findings of professional misconduct

relating mainly to misleading the Law Society.


relating mainly to dishonesty and/or overcharging of fees.


relating mainly to delay, failure to respond to the Law Society and failure to

comply with professional obligations.


relating mainly to breach of Practice Rules and/or the Accounts Rules.

Summary of Decision in respect of Findings of professional misconduct where

the main issue was failure to deal with an executry.

Summary of Decision in respect of Findings of professional misconduct where

the main issue related to conflict of interest.


APPENDIX ONE

Summaries of Decisions in respect of Findings relating to Complaints under section 53(1)(b)

MICHAEL LOUIS KARUS

A Complaint was made by the Council of the Law Society of Scotland against Michael Louis Karus,

care of Michael Foster, Hughes Dowdall, Solicitors and Notaries, Suite 1, 2nd Floor, Standard Buildings,

102 Hope Street, Glasgow (“the Respondent”). The Tribunal found the Respondent had been

convicted of an offence and sentenced to a period of imprisonment of three and a half years and that

accordingly Section 53(1)(b) of the Solicitors (Scotland) Act 1980 applies to the circumstances of this

case.

The Tribunal struck the Respondent’s name off the Roll of the Solicitors in Scotland.

The Tribunal considered that the charge of embezzlement in the indictment was a very serious offence

committed whilst the Respondent was in a position of trust. The Tribunal considered that such an

offence committed by a member of the profession undoubtedly had a significant negative effect on the

reputation of the profession which has not been negated by the money being subsequently repaid.

Members of the public must be able to have confidence that any Solicitor whom they instruct will be a

person of unquestionable integrity, propriety and trustworthiness. The Tribunal took account of the

fact that the Respondent had co-operated with the Law Society regarding this Complaint, noted the

Respondent’s current circumstances as outlined by Mr Foster and that the Respondent had moved on

with his life in the years since the offence was committed. However, the Tribunal considered that the

offence committed by the Respondent clearly demonstrates that he is not a fit person to be a Solicitor.

RICHARD SUTTON HOUSLEY

A Complaint was made by the Council of the Law Society of Scotland against, Richard Sutton Housley,

formerly of HMP Castle Huntly, Longforgan, Dundee and now at 13 Winton Loan, Edinburgh (“the

Respondent”). The Tribunal found that the Respondent has been convicted on three charges and

sentenced to a term of imprisonment of four years, six months and six months to run concurrently and

that accordingly Section 53(1)(b) of the Solicitors (Scotland) Act 1980 applies to the circumstances of the

case.

The Tribunal Struck the name of the Respondent, Richard Sutton Housley, from the Roll of Solicitors in

Scotland.

This was a very serious conviction. The Tribunal particularly noted the sentencing Judge’s remarks –

“The Solicitor’s role as a gatekeeper in preventing money laundering is not limited to carrying out formal identity

checks. It is of much greater importance that members of the legal profession act with honesty and integrity when

implementing the statutory obligations imposed upon them by the Proceeds of Crime legislation. They are trusted

to do so by the law enforcement agencies and by their fellow lawyers. In relation to the matters before me, you


have fallen short of the standard required of a member of legal profession.” The Tribunal endorsed this

statement.

In the circumstances, the Tribunal had no option but to remove the Respondent’s name from the Roll of

Solicitors in Scotland. The Respondent is clearly not a fit person to remain on the Roll of Solicitors.


APPENDIX TWO

Summaries of Decisions in respect of Findings of Professional Misconduct where the main issues

were failure to comply with the Council on Mortgage Lenders Handbook, failure to comply with the

Practice Rules and/or failure to comply with the Money Laundering Regulations

JAMES ANTHONY McCUSKER

A Complaint was made by the Council of the Law Society of Scotland against James Anthony

McCusker, 1 Orr Square, High Street, Paisley (“the Respondent”). The Tribunal found the Respondent

guilty of professional misconduct in cumulo in respect of a) his conduct falling far below the standard to

be expected of a competent, reputable and careful Solicitor acting on behalf of a purchasing and selling

client in a conveyancing transaction; b) his failing to comply with the terms of the Accounts Rules

insofar as they relate to Money Laundering Regulations, in particular rule 24; c) his failing to comply

with regulations, 5, 6, 7, 11, 14 and 17 of the Money Laundering Regulations 2007; and d) his failing to

comply with part 7 of the Proceeds of Crime Act 2002, and in particular Section 330 thereof.

The Tribunal Censured the Respondent and Fined him in the sum of £2,500.

The Tribunal was concerned by the fact that the Respondent although an experienced conveyancer

appeared not to have realised that questions required to be asked with regard to these transactions and

that he should have made a SAR report. He should have been alerted to the possibility that these

transactions may have been designed to facilitate the obtaining of mortgage funding by deception. The

Tribunal has made it clear in numerous findings the importance of Solicitors being vigilant in these

types of cases. The Tribunal considered it important that a message is sent out to both the profession

and the public that it is not appropriate for Solicitors to deal with transactions such as this in such a

reckless way. The Tribunal noted that the other two Solicitors involved, being Mr Craig and Mr Tulips,

had both recently been dealt with by the Tribunal in respect of the same transactions and each was

Censured and Fined £2,500. The Tribunal was not persuaded by the Respondent’s representative’s

submissions that this Respondent was less culpable due to his perceptions of the case. The fact remains

that he played an integral part in these illegal transactions and must therefore accept the consequences

of his actions. The Tribunal had no hesitation in considering that the principle of comparative justice

should apply.

DAVID JAMES CLARK

A Complaint was made by the Council of the Law Society of Scotland against David James Clark,

formerly residing at 58 Silverknowes Drive, Edinburgh and now at 6/8 Waverley Park Terrace,

Edinburgh (“the Respondent”). The Tribunal found the Respondent guilty of professional misconduct

in respect of his failure in his duties under the CML Handbook and at common law to provide material

information to the lenders in conveyancing transactions, his breaches of Rule 6(1)(c) of the Solicitors

(Scotland) Accounts, Accounts Certificate, Professional Practice and Guarantee Fund Rules 2001 as a

result of the aforesaid failures in complying with the requirements of the CML Handbook, his breach of

Rule 8 of the Solicitors (Scotland) Accounts, Accounts Certificate, Professional Practice and Guarantee


Fund Rules 2001, and his breaches of Rule 24 of the Solicitors (Scotland) Accounts, Accounts Certificate,

Professional Practice and Guarantee Fund Rules 2001 in respect of his failure to comply with the

Money Laundering Regulations 2007.

The Tribunal Censured the Respondent and Directed in terms of Section 53(5) of the Solicitors

(Scotland) Act 1980 that for a period of three years any practising certificate held or issued to the

Respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to such

employer as maybe approved by the Council of the Law Society of Scotland or the Practising Certificate

Sub Committee of the Council of the Law Society of Scotland, and thereafter until such time as he

satisfies the Tribunal that he is fit to hold a full practising certificate.

The Tribunal had before it a Complaint involving 11 transactions with significant irregularities. The

Respondent had failed to report obviously significant matters to the lenders in some of these

transactions. In two of these cases the seller of the property had provided the deposits for the purchase.

This was not reported to the lenders. In two of the transactions the purchase price noted in the

instructions given by the lenders did not match the purchase price elsewhere within the files. There

were significant failures in respect of the Money Laundering Regulations. In many cases he had failed

to check clients’ identification. He failed to carry out any checks as to the source of the funds for

deposits. The parts of the CML Handbook breached in this case are principally designed to prevent

fraud. There had been no suggestion of deliberate dishonesty or personal gain. Having regard in

particular to the protection of the public, the Tribunal concluded that the most appropriate disposal

was a Restriction on the Respondent’s practising certificate, restricting him to working under

supervision for a lengthy period and until he had satisfied the Tribunal that he was fit to hold a full

practising certificate. Three years was considered the appropriate period for the Restriction.


APPENDIX THREE

Summaries of Decisions in respect of Findings of professional misconduct relating mainly to

conduct unbecoming of a Solicitor

MICHAEL SANDISON ALLAN

A Complaint was made by the Council of the Law Society of Scotland against Michael Sandison Allan,

25 Castle Street, Aberdeen (“the Respondent”). The Tribunal found the Respondent guilty of

professional misconduct in respect of his causing the company of which he was the controlling mind to

be subject to a seven year period of disqualification and his incurring himself a seven year period of

disqualification thereby bringing the legal profession into disrepute.

The Tribunal Censured the Respondent and Fined him in the sum of £1,000.

The Respondent got himself into difficulty in operations not connected with his legal practice. His

failure to supervise his staff and exercise control led to the company of which he was the sole director

being subject to the maximum period of disqualification that the regulator could impose. This clearly

brings the legal profession into disrepute. In this case the Solicitor also personally incurred a seven year

disqualification. Solicitors require to maintain the same standards of propriety in relation to any

commercial ventures as are expected of them in professional practice. The Tribunal considered that

Solicitors need to be reminded of the importance of maintaining appropriate standards in other aspects

of their life as well as in their professional lives.

Although the Tribunal considered the Respondent’s conduct to be at the lower end of the scale of

professional misconduct, the Tribunal was concerned by the Respondent’s lack of supervision and

control of his business which although not directly related to his legal practice is cause for concern. In

the circumstances the Tribunal imposed a fine of £1,000 in addition to the Censure.

SOPHINA MEHMOOD ALI

A Complaint was made by the Council of the Law Society of Scotland against Sophina Mehmood Ali of

8 Fernleigh Road, Newlands, Glasgow (“the Respondent”). The Tribunal found the Respondent guilty

of professional misconduct in cumulo in respect of her convictions of 17 November 2014 for

contraventions of section 103(1)(b), section 143(1) and (2) and section 47(1) of the Road Traffic Act 1988

and her conviction of 14 August 2014 for a contravention of section 143(1)(2) of the Road Traffic Act

1988.

The Tribunal Censured the Respondent.

It is quite clear that a Solicitor’s conduct in his or her personal life can amount to professional

misconduct. A Solicitor must seek to maintain the highest standard of conduct. It was clear in this case

that the Respondent’s conduct represented a serious departure from the standards expected from a

member of the profession, in particular with regard to the breach of a court order. The public must


have faith in the profession. Such conduct brings the profession into disrepute. Having regard to the

fines already imposed, the three days spent in custody, and the otherwise good record for the

Respondent, together with the content of the letter previously submitted to the Law Society, the

Tribunal concluded that the matter should be dealt with by a Censure.

MARTHA ANNE RAFFERTY

A Complaint was made by the Council of the Law Society of Scotland against Martha Anne Rafferty,

Solicitor, J. R. Rahman, First Floor, 40 Carlton Place, Glasgow (“the Respondent”). The Tribunal found

the Respondent guilty of professional misconduct in cumulo in respect of her being convicted twice in

relation to drink driving offences in terms of the Road Traffic Act 1988.


The Tribunal has made it clear on a number of previous occasions that a Solicitor’s conduct in his or her

personal life can amount to professional misconduct. In this case the Respondent had been convicted

twice in relation to drink driving offences. The Tribunal accepted that the Respondent’s conduct took

place in her private life rather than her professional life but her conduct may have put other road users

and members of the public at risk. On two occasions the Respondent got behind the wheel of a car

when she should not have been driving. She also failed to cooperate with the authorities in relation to

providing breath tests, which was something, in terms of the law, she was required to do. The Tribunal

considered that the public would regard these offences, committed by a Solicitor, as a matter of serious

concern. In these circumstances her behaviour was a danger to the public and the Tribunal considered

that it was behaviour that would not be tolerated by the public. The Tribunal considered that her

conduct had to be considered as conduct not becoming of a Solicitor and was conduct which would be

likely to bring the profession into disrepute. The Tribunal however was not persuaded that the

Respondent’s conduct amounted to a breach of Rule B1.2 of the Practice Rules 2011, in that the Tribunal

did not consider that the Respondent’s conduct was dishonest, fraudulent or deceitful. In the whole

circumstances the Tribunal considered that the two convictions, in cumulo were serious and

reprehensible enough to meet the Sharp test but considered the misconduct to be a the lower end of the

scale.


APPENDIX FOUR

Summary of Decision in respect of Findings of professional misconduct relating mainly to

misleading the Law Society

ROSS ALEXANDER JONES

A Complaint was made by the Council of the Law Society of Scotland against, Ross Alexander Jones,

Solicitor, of Messrs Jones Whyte, Solicitors, 12 Fitzroy Place, Glasgow (“the Respondent”). The

Tribunal found the Respondent guilty of professional misconduct in respect of his acting in a reckless,

inaccurate and misleading fashion and allowing his integrity to be called into question by presenting

inaccurate and misleading information to the Complainers who were at the material time exercising

their duties as regulator whilst considering his application for a waiver and further the Respondent

sought to mislead the Complainers by contending that he had met with a member of the financial

compliance department in an effort to present compliance with a condition imposed by the

Complainers when in actual fact, as the Respondent well knew, he had not.


The Tribunal considered this to be a very unfortunate case. The two waiver conditions would not have

been difficult for the Respondent to meet. The Respondent committed an error of judgement in the

way he dealt with enquiries made of him by the Law Society Professional Practice Waiver Committee.

The Tribunal considered that the Respondent’s conduct fell at the very lower end of the scale of

professional misconduct. The Tribunal however was mindful that the Law Society has to have certain

rules which regulate the profession and these rules are important insofar as maintaining the

professional and ethical standards of the profession. It is imperative that Solicitors cooperate with the

Law Society in operating their statutory function and it cannot be acceptable for a Solicitor to provide

the Law Society with inaccurate and misleading information. The Tribunal considered that the

Respondent’s conduct in this particular case was unfortunately reckless and therefore amounted to

professional misconduct. The Respondent was a talented lawyer with an unblemished record who had

made a stupid mistake and did not fully understand his responsibilities. The Tribunal considered that

a Censure was a sufficient penalty.


APPENDIX FIVE

Summaries of Decisions in respect of Findings of professional misconduct relating mainly to

dishonesty and/or overcharging of fees

NOEMAAN FAROOQ BUTT

A Complaint was made by the Council of the Law Society of Scotland against Noemaan Farooq Butt,

Solicitor, 6 Thornhill Gardens, Newton Mearns (“the Respondent”). The Tribunal found the

Respondent guilty of professional misconduct in cumulo in respect of his repeated breaches of Rule 6 of

the Solicitors (Scotland) Accounts etc Rules 2001, his repeated breaches of Rule 4(1)(a) of the Solicitors

(Scotland) Accounts etc Rules 2001 which included his falsification of bank records and issuing false

and misleading accounts certificates, and his failure between 5 October 2010 and 9 March 2011 to have

in place adequate systems for the supervision of staff.

The Tribunal ordered that the name of the Respondent be struck off the Roll of Solicitors in Scotland.

The Respondent admitted the majority of the averments of fact in the Complaint and admitted a

catalogue of professional misconduct which included acts of dishonesty. The Respondent had

misappropriated funds from the client account to pay a Mr X and then had taken elaborate and

deliberate steps to falsify records to cover up the true position. It was accepted by the Respondent that

the alleged extortion by Mr X was not a defence to his conduct but the Respondent invited the Tribunal

to give these allegations considerable weight in considering mitigation. No evidence of these threats

however was produced beyond the Respondent’s testimony. The Tribunal found the Respondent a

wholly unreliable and incredible witness and considered that the Respondent disclosed little remorse

or insight into the serious nature of his conduct which had persisted over a long period of time and

clearly suggested that the Respondent was a danger to the public. The Tribunal could not see how any

restriction on the Respondent’s practising certificate would provide the public with the necessary

protection and came to the conclusion that the only disposal available was to strike the Respondent’s

name from the Roll of Solicitors. There was a Secondary Complainer who made a claim for

compensation but then withdrew this claim. The Tribunal ordered deferred publicity until the

conclusion of any Crown Office investigation and any prosecution that might proceed thereon.

The Crown Office have now confirmed that publicity can be given to this decision.

MASSIMO D’ALVITO

A Complaint was made by the Council of the Law Society of Scotland against Massimo D’Alvito, 1

Winton Grove, Edinburgh (“the Respondent”). The Tribunal found the Respondent guilty of

professional misconduct in respect that he acted in a dishonest and deceitful fashion by engaging

repeatedly in a scheme designed by him to recover money from the Scottish Legal Aid Board to which

he was not entitled.

The Tribunal Ordered that the name of the Respondent be Struck Off the Roll of Solicitors in Scotland.


On 81 instances the Respondent had submitted claims for payment to the Scottish Legal Aid Board

which contained invented outcomes in order to secure payment at an earlier stage than he would

otherwise be entitled. On six occasions the Respondent had fabricated and / or inaccurately described

certain diets creating an opportunity for him to fraudulently claim add ons to the core fixed fees

amounting to £360.The Respondent had repaid all overpayments to the Scottish Legal Aid Board. The

Tribunal accepted that on the 81 occasions referred to the Respondent had submitted claims for

payment for sums which would have been payable at a later stage and that on the six occasions where

he had submitted claims for payment to which he was not entitled at all the value was low. However,

the Respondent had admitted engaging in a deliberate and dishonest course of conduct which had

extended over a period of two years. He had submitted claims for payment which contained deliberate

false entries and in each of these cases he had completed a certificate indicating their truth and

accuracy. Although the Respondent had cooperated with the Council of the Law Society and had not

previously appeared before the Tribunal, the conduct in this Complaint involved deliberate dishonesty.

Such systematic abuse of public funds would inevitably seriously damage the reputation of the

profession. This conduct clearly demonstrated that the Respondent was not a fit person to be a Solicitor

and accordingly the Tribunal had no choice but to strike his name from the Roll of Solicitors.

DAVID RICHARD BLAIR LYONS

And

DUNCAN HUGH DRUMMOND

A Complaint was made by the Council of the Law Society of Scotland against David Richard Blair

Lyons, Greenways, Pacemuir Road, Kilmacolm (“the First Respondent”) and Duncan Hugh

Drummond, Flat 1/2, 80 Kirkcaldy Road, Pollockshields, Glasgow (“the Second Respondent”).

The Tribunal found the First Respondent guilty of professional misconduct in respect of 1) his failure to

respond to correspondence from the Law Society, 2) his failure to obtemper statutory notices, 3) his

taking of grossly excessive fees from executry estates, 4) his failure to comply with the requirements of

the Accounts Rules, 5) his taking of fees from the sale proceeds of a property to which he was not

entitled, 6) his failure to obtemper letters of obligation, 7) his taking of fees without rendering fee notes,

8) his embezzlement of the sum of £1,040,000 from the Bank of Ireland. The Tribunal ordered that his

name be struck from the Roll of Solicitors in Scotland.

The Tribunal found the Second Respondent guilty of professional misconduct 1) in respect of his

taking of grossly excessive fees from executry estates, 2) his taking of fees without rendering fee notes,

3) his failure to comply with the requirements of the Accounts Rules, 4) his failure to supervise his

firms assistant, in breach of an undertaking given by him to the Law Society. The Tribunal ordered

that his name be Struck from the Roll of Solicitors in Scotland.

In relation to the First Respondent, no appearance was made at the hearing and the Tribunal required

to hear evidence. As a consequence of the evidence the Tribunal were satisfied that the First

Respondent was guilty of a serious catalogue of offending. He had misappropriated funds from

executry accounts. He had embezzled over £1,000,000 from the Bank of Ireland. He had breached

Accounts Rules and had failed to respond to correspondence and statutory notices from the Law


Society. Each of these matters was in their own right extremely serious misconduct. This course of

conduct was so serious in its nature that the protection of the public required that the Tribunal strike

the name of the First Respondent from the Roll of Solicitors. His behaviour was clearly dishonest.

Additionally there were previous Findings against this Respondent.

With regard to the Second Respondent, the parties had lodged a Joint Minute agreeing the averments

of fact and agreeing the averments of professional misconduct subject to the proviso that the Second

Respondent was guilty of professional misconduct in cumulo by complicity in the actings of the First

Respondent in respect of taking grossly excessive fees from executry estates, taking fees without

rendering fee notes, and failing to comply with the requirements of the Accounts Rules. The Joint

Minute agreed the averment of professional misconduct by failing to supervise his firm’s assistant, in

breach of the undertaking given by the Respondent to the Law Society. The Second Respondent

admitted that for a period of 12 months he had been aware that his partner had been removing funds

from the Second Respondent’s clients’ accounts with an explanation of using the funds to pay his firms

obligations. The Second Respondent was aware of the mechanics of the removal of the funds and that

these were in breach of the Accounts Rules. He had taken no real steps to protect his clients’ interests.

The Second Respondent had issued a letter of undertaking to the Law Society that he would supervise

an individual who had had his practising certificate restricted by the Discipline Tribunal. The Second

Respondent admitted failing to supervise this individual. Each of these matters represented a serious

and reprehensible departure from the standards of conduct to be expected of a competent and

reputable Solicitor and accordingly the Tribunal found the Second Respondent guilty of professional

misconduct. Although the Second Respondent had shown some degree of insight and regret before the

Tribunal, the conduct admitted was of the most serious and reprehensible nature. Whilst the Second

Respondent had attended at the Law Society’s office to provide information regarding the conduct of

the First Respondent, he had delayed in taking such steps for a period of 12 months whilst continuing

to benefit from the misappropriation of funds from executry accounts. The Second Respondent had

already appeared before the Tribunal in relation to what the Second respondent had described as

difficulties he faced in relation to an arrangement where he practised from one office and the cashroom

was based in another office. The Second Respondent had chosen to stay in business with his partner in

the full knowledge of these arrangements and in the full knowledge of the actions of his partner in

removing funds from executry accounts. The written undertaking given to the Law Society to

supervise the assistant was given by the Second Respondent personally in the knowledge that the

assistant’s practising certificate had been restricted by the Tribunal. In all of these circumstances, the

Tribunal concluded that the public interest required that the name of the Second Respondent be struck

from the Roll of Solicitors in Scotland.

STEVEN PHILIP CROMMIE

A Complaint was made by the Council of the Law Society of Scotland against Steven Philip Crommie,

Solicitor, formerly of 15 Georgetown Drive, Dumfries and currently care of HMP Dumfries (“the

Respondent”). The Tribunal found the Respondent guilty of professional misconduct in respect of his

deliberately and repeatedly securing from clients of his firm, cash payments which he thereinafter

retained for his own personal benefit contrary to the basic principles of honesty, truthfulness and

integrity expected of a Solicitor and his breaching Rules B1.2, B6.3, B6.7 and B6.12 of the Law Society of

Scotland Practice Rules 2011.


The Tribunal Ordered that the Respondent’s name be struck off the Roll of Solicitors in Scotland.

The Tribunal had no hesitation in finding that the Respondent’s conduct was sufficiently serious and

reprehensible to amount to professional misconduct. It is essential that Solicitors are honest and

trustworthy at all times. It is extremely detrimental to the reputation of the profession if Solicitors act

in the way that the Respondent did in this case. The client account must be kept sacrosanct at all times.

Whatever pressure a Solicitor is facing there is no excuse for taking client’s money to which a Solicitor

is not entitled. There is no place in the profession for a Solicitor who has stolen from his clients. The

Tribunal considered that in a case such as this, involving dishonesty and breach of client’s trust, there

was no alternative but to strike the Respondent’s name from the Roll of Solicitors in Scotland.


APPENDIX SIX

Summaries of Decisions in respect of Findings of professional misconduct relating mainly to delay,

failure to respond to the Law Society and failure to comply with professional obligations

MURRAY ALEXANDER McAULEY

A Complaint was made by the Council of the Law Society of Scotland against Murray Alexander

Thomas McAuley, Solicitor, 96 Woodside Street, Coatbridge (“the Respondent”). The Tribunal found

the Respondent guilty of professional misconduct in cumulo in respect of his failure (a) to respond to

correspondence from the Law Society of Scotland; (b) to obtemper statutory notices served upon him

by the Law Society of Scotland; and (c) to pay the professional fees of a Doctor for reports instructed by

him.

The Tribunal Censured the Respondent and Directed that in terms of Section 53(5) of the Solicitors

(Scotland) Act 1980 that any practising certificate held or to be issued to the Respondent shall be subject

to such restriction as will limit him to acting as a qualified assistant to such employer or successive

employers as maybe approved by the Council of the Law Society of Scotland or the Practising

Certificate Sub Committee of the Council of the Law Society of Scotland and that for an aggregate

period of one year.

The Tribunal has emphasised on a number of previous occasions the importance of Solicitors dealing

promptly and efficiently with correspondence from the Law Society to enable it to perform its statutory

duties. Solicitors who fail to engage in the process bring the system into disrepute. It is impossible to

see how the public can have any faith in the profession unless the profession upholds its duty to

cooperate with its regulatory body. The public is also entitled to expect that Solicitors be fair in their

dealings with witnesses/professional parties on behalf of their clients. A Solicitor is expected to accept

personal responsibility for the expenses incurred by professional witnesses and the Respondent in

failing to make payment over an extended period, and in failing to give any response the Doctor, has

brought the profession into disrepute. Even in his appearance before the Tribunal at the hearing, the

Respondent failed to demonstrate any insight into the fundamental importance of a Solicitor’s duty to

cooperate with his regulatory body. In these circumstances the Tribunal felt it appropriate to restrict

the Respondent’s practising certificate to acting as an employee for an aggregate period of one year

thus allowing the Respondent to return to practice but ensuring that he would be supervised and the

interests of the public be protected.

STEPHEN GERARD FAGAN

A Complaint was made by the Council of the Law Society of Scotland against, Stephen Gerard Fagan,

Fagan Solicitors 115 Graham Street, Airdrie (“the Respondent”). The Tribunal found the Respondent

guilty of professional misconduct in respect of his unreasonable delay and/or failure to respond to the

reasonable requests and enquiries of the Scottish Legal Aid Board both written and verbal.


The Tribunal Censured the Respondent and Direct in terms of section 53(5) of the Solicitors (Scotland)

Act 1980 that for a period of 3 years with effect from 1 October 2015 any practising certificate held or

issued to the Respondent shall be subject to such restriction as will limit him to acting as a qualified

assistant to such employer as may be approved by the Practising Certificate Sub Committee of the

Council of the Law Society of Scotland.

The Tribunal considered that the Respondent was sloppy and disorganised. His conduct had

consequences and put a lot of people to a lot of trouble. The Scottish Legal Aid Board is a publicly

funded body and was frustrated in its efficient operation by the Respondent’s delay. The Scottish

Legal Aid Board was also inconvenienced and put to a lot of time and trouble over the issue. The

Respondent’s delay also had an effect on the Secondary complainer and caused her further stress and

inconvenience. In the circumstances the Tribunal considered that the Respondent’s conduct was

sufficiently serious and reprehensible to amount to professional misconduct.

It appeared to the Tribunal that the Respondent was continuing as a sole practitioner with a heavy

workload, debt problems, difficulties with depression and without having shown insight or having

taken corrective steps to prevent a reoccurrence of past failures. In these circumstances the Tribunal

had real concerns that the public would be at risk if the Respondent continued to operate as a sole

practitioner and accordingly imposed a Restriction on his practising certificate.

The Tribunal considered the Secondary Complainer’s request for compensation and Ordained the

Respondent in terms of Section 53(2)(bb) of the Solicitors (Scotland) Act 1980 to pay to the Secondary

Complainer the sum of £250 by way of compensation in respect of inconvenience and stress resulting

from the misconduct.

DANIEL O’NEILL

A Complaint was made by the Council of the Law Society of Scotland against Daniel O’Neill, 5

Harmony Place, Glasgow (“the Respondent”). The Tribunal found the Respondent guilty of

professional misconduct in respect of his failure to a) communicate effectively with this client the

Secondary Complainer by failing to deal with his correspondence and telephone calls between 15

August 2011 and 11 may 2012 and b) to update his client the Secondary Complainer on the progress of

his case despite requests to do so.


The Respondent admitted failing to communicate with his client between 15 August 2011 and 11 May

2012, a period of nine months. The Affidavit disclosed 21 separate telephone calls during that time.

This represents persistent failure to communicate with his client. Clearly his conduct fell well below the

standard to be expected of a competent and reputable Solicitor, and could only be considered as serious

and reprehensible. Likewise for the same period of time the Respondent had failed to update the client

of the progress of his case. In these circumstances, the Tribunal found the Respondent guilty of

professional misconduct in respect of these two elements of the Complaint. Whilst the Tribunal did not

accept that this conduct was at the absolute lowest end of the scale of misconduct given its persistence,


having taken into account the Respondent’s previous good record, and the payment already made to

the Secondary Complainer, it concluded that the matter could be dealt with by way of a Censure.

JOHN FRASER TAIT

A Complaint was made by the Council of the Law Society of Scotland against John Fraser Tait, Tait

Macleod Solicitors, Eilean Chambers, 6 Park Street, Falkirk (“the Respondent”). The Tribunal found

the Respondent guilty of professional misconduct in cumulo in respect of the Respondent’s (a) undue

delay in obtaining confirmation in the late Mr A’s estate during the period from July 2012 to April 2013;

(b) failure to follow the Secondary Complainers’ instructions, provided in August 2012, to reclaim

council tax paid during the late Mr A’s three month hospital stay; and (c) failure to communicate

effectively with the Secondary Complainers, and failure to keep the Secondary Complainers regularly

informed about progress of the estate during the period from July 2012 to April 2013.


The Tribunal agreed with the parties that the delay in progressing the executry, and reclaiming the

council tax benefit did not in themselves meet the standard necessary. However, the duties upon a

Solicitor to keep clients advised of progress and to respond to correspondence are, as referred to in

Smith & Barton, “of cardinal importance”. The Respondent had failed to contact the Secondary

Complainers despite repeated attempts on their part to obtain information. Such failure to respond

would inevitably cause anxiety on the part of the clients. His failure to progress the executry, deal with

the council tax claim and most importantly his failure to respond to the Secondary Complainers would

be regarded by any competent and reputable Solicitor as serious and reprehensible. The Tribunal

accepted that the Respondent’s conduct however was at the lower end of the scale of professional

misconduct. This appeared to be an isolated incident. The Respondent had tendered an early plea of

guilty and was clearly remorseful and insightful. As a result, there appeared to be no risk to the public

or requirement for supervision. The Respondent had acted appropriately in response to the complaint

to the SLCC and had settled the claim for compensation immediately minimising the impact upon the

victim. In all of these circumstances, the Tribunal considered that the appropriate disposal was one of

Censure.


APPENDIX SEVEN

Summaries of Decisions in respect of Findings of professional misconduct relating mainly to breach

of Practice Rules and/or the Accounts Rules

RICHARD ALLAN SANDEMAN

Two Complaints were made by the Council of the Law Society of Scotland against Richard Allan

Sandeman, Solicitor, Messrs Sandemans, Solicitors, 34 Union Road, Camelon, Falkirk (“the

Respondent”).

In relation to Complaint 1 under the 2005 Rules, the Tribunal found the Respondent guilty of

professional misconduct in respect of his breach of Rule 21 of the Solicitors (Scotland) Accounts Etc

Rules 2001. The Tribunal Censured the Respondent and Fined him in the sum of £3,000.

In relation to Complaint 2 under the 2008 Rules, the Tribunal found the Respondent not guilty of

professional misconduct and remitted the Complaint to the Council of the Law Society of Scotland in

terms of Section 53ZA of the Solicitors (Scotland) Act 1980.

In respect of Complaint 1, the Respondent accepted that he breached Rule 21 of the Accounts Rules. A

breach of the Accounts Rules may amount to professional misconduct but only if it is serious and

reprehensible enough to meet the terms of the Sharp test. It was of concern to the Tribunal that it

apparently did not even cross the Respondent’s mind to get Mr C to obtain independent advice with

regard to lending the Respondent money. £18,000 is a significant amount of money. The Respondent’s

interest was in receiving the money by way of loan for his own sole benefit whereas Mr C’s interest

would be to be given as much protection as possible to ensure that repayment of the loan could be

enforced if required. At the time the loan was given no loan documentation was prepared. The

Respondent’s underlying interest in the transaction was adverse to that of Mr C. The Tribunal

considered it inexcusable that the Respondent put such a close friend at risk in this way. A Solicitor

ought not to enter into any contracts or transactions with his clients where his own personal interests

may be in conflict. This was clearly the case here and the Tribunal had no hesitation in making a

finding of professional misconduct. The Tribunal noted previous findings of misconduct against the

Respondent but did not consider that the Respondent posed a risk to the public.

In respect of Complaint 2, the Tribunal found that the Respondent was in breach of rule 24 of the

Accounts Rules in respect of his failure to take any steps to check the source of the funds being received

from Ms A. Given the evidence led, the Tribunal was unable to make a finding as to whether Ms A was

or was not a client at the time of the loan but accepted that she had previously been a client of the

Respondent and was a local businesswoman who the Respondent had known for over 10 years. This

taken together with the fact that the amounts of the repayments were only in the region of £1500

instalments, the Tribunal could not find that this breach of rule 24 was so serious and reprehensible so

as to meet the Sharp Test. In respect of Mr and Mrs B, The Tribunal noted that there was a failure at the

time to carry out formal identification checks but considered that this was a technical failure given that

the Respondent had previously acted for Mr and Mrs B and knew the clients. The Respondent also


knew the source of the funds having been involved in the sale of their property. The Tribunal however

noted that there were a number of unusual circumstances in the case, the signed mandate to pay Mr B’s

father which was then cancelled, the large cash payment and the lack of formal identification

documentation, which may mean that this in cumulo with the Respondent’s actings in respect of Ms A

could amount to unsatisfactory professional conduct. In the circumstances the Tribunal found the

Respondent not guilty of professional misconduct but remitted the Complaint in terms of Section 53ZA

to the Law Society of Scotland to consider if the conduct in cumulo may amount to unsatisfactory

professional conduct.

LESLIE WILSON SOMERVILLE

A Complaint was made by the Council of the Law Society of Scotland against Leslie Wilson Somerville,

Solicitor, 7A Mayne Avenue, Bridge of Allan (“the Respondent”). The Tribunal found the Respondent

guilty of professional misconduct in cumulo in respect of his breach of Rule B6 of the Law Society of

Scotland’s Practice Rules 2011 and in particular his repeated failure to maintain a surplus on his client

account; to keep properly written up books to show the true financial position of the practice unit; to

keep and maintain a proper list of client balances or to produce surplus statements; to maintain an

accurate record of client invested funds or to carry out reconciliations; and to discharge his

responsibilities as the cashroom manager of the practice unit throughout its existence.

The Tribunal Censured the Respondent and Direct in terms of Section 53(5) of the Solicitors (Scotland)

Act 1980 that any practising certificate held or to be issued to the Respondent shall be subject to such

restriction as will limit him to acting as a qualified assistant to and to being supervised by such

employer or successive employers as maybe approved by the Council of the Law Society of Scotland or

the Practising Certificate Sub Committee of the Council of the Law Society of Scotland and that for an

aggregate period of at least two years and thereafter until such time as he satisfies the Law Society that

he is fit to hold a full practising certificate.

The Tribunal accepted that the Respondent had not undertaken a deliberate course of action it was

more a case of him not coping and getting himself into a mess. The Respondent however as an

experienced Solicitor should have realised this and should not have continued in practice in breach of

the 2011 Rules. The Tribunal found it extremely concerning that the Respondent as an experienced

Solicitor would carry on in business not realising the difficulties he was getting himself into. It is

imperative if the public are to have confidence in the legal profession that Solicitors comply with the

requirements of the rules. In this case the Respondent breached numerous Accounts Rules during the

period of his sole practice. The Tribunal noted a previous finding of professional misconduct against

the Respondent. The Tribunal took account of the fact that the Respondent had cooperated with the

Law Society Fiscal and entered into a Joint Minute. He had also attended the Tribunal in person and

seemed genuinely remorseful about what had happened. The Tribunal also took account of the fact that

the Respondent had eventually realised that he could not continue, closed his firm and had resolved all

the previous deficits. The Tribunal however considered that in order to protect the public a restriction

should be imposed on the Respondent’s practising certificate. The Tribunal considered it important

that the Respondent work under supervision for a period of at least two years prior to being able to

have a full practising certificate to ensure that he learns from his previous mistakes.


APPENDIX EIGHT

Summary of Decision in respect of Findings of professional misconduct where the main issue was

failure to deal with an executry

DONALD STEWART MURRAY

A Complaint was made by the Council of the Law Society of Scotland against Donald Stewart Murray,

Solicitor, 31 David Street, Kirkcaldy (“the Respondent”). The Tribunal found the Respondent guilty of

professional misconduct in respect that he failed and / or delayed in undertaking any work in an

attempt to conclude the administration of an estate for 14 months.

The Tribunal Censured the Respondent and Directed that in terms of Section 53(5) of the Solicitors

(Scotland) Act 1980 that for an aggregate period of 4 years any practising certificate held or issued to

the Respondent should be subject to such restriction as will limit him to acting as a qualified assistant

to such employer as may be approved by the Council of the Council of the Law Society of Scotland or

the Practising Certificate Sub-Committee of the Council of the Law Society of Scotland. Further the

Respondent was ordered to pay to two Secondary Complainers, who had been beneficiaries of the

estate, £500 compensation.

The Respondent had failed to progress the executry for a period of 14 months. In that time he had been

contacted repeatedly by beneficiaries. On those occasions he had either misled or deceived the

beneficiaries. The Tribunal was most concerned by the Respondent’s dishonest responses to the

beneficiaries of the estate. This conduct in particular suggested that the public could be in danger

should the Respondent continue to work with a full practising certificate. The Tribunal had regard to

the fact that the Law Society’s records did not disclose any previous involvement with the Tribunal.

However, the nature of the misconduct and his lack of engagement with proceedings led the Tribunal

to the conclusion that should the Respondent attempt to practise as a Solicitor in future he should be

restricted to working as an assistant for a period of time.

The Respondent’s misconduct had caused significant inconvenience to the Secondary Complainers for

a substantial period of time resulting in concern on their part. The Respondent had taken no steps to

rectify matters.


APPENDIX NINE

Summary of Decision in respect of Findings of professional misconduct where the main issue

related to conflict of interest

SOLICITOR B

A Complaint was made by the Council of the Law Society of Scotland against, Solicitor B (“the

Respondent”). The Tribunal found the Respondent guilty of professional misconduct in respect of his

entering into a sexual relationship with a vulnerable client referred to him by Org 1 and his acting in a

manner that raised issues as to his trustworthiness and placed into question his personal and/or

professional integrity and his entering into a sexual relationship with a client who was vulnerable

thereby allowing his independence to be impaired, failing to act in the best interests of his client,

allowing his own personal interests to influence his actings on behalf of his client, creating a potential

conflict of interest situation and failing in his duty of utmost trust and confidence.

The Tribunal Censured the Respondent; Fined him in the sum of £5,000 to be forfeit to Her Majesty.

The Tribunal found this to be a difficult case and considered its decision in connection with sanction

very carefully. The Tribunal noted that in connection with the complaint from Ms AA, the complaint

was not raised until the relationship had ended. However the Tribunal is considering the Respondent’s

conduct in continuing to act after he had entered into a sexual relationship with his client. The

Respondent was dealing with a vulnerable client and acting in a divorce action. The Respondent

should have known better and committed a serious error of judgment by continuing to act. The

Tribunal did not consider that the Respondent acted improperly from a legal point of view as he just

kept matters ticking over. The Tribunal however considered that the most serious aspect of the

Respondent’s misconduct was his breach of Org 1’s trust. The Respondent was considered to be a

trusted advisor by Org 1 and he abused this position of trust. The Tribunal consider this to be very

damaging to the reputation of the legal profession.

The Tribunal having found the Respondent, Solicitor B, guilty of professional misconduct and having

heard from the First Secondary Complainer, Org 1, found that Org 1 were directly affected by the

Respondent’s professional misconduct and Directed that the Respondent provide a verbal apology to

the manager and the Board of Org 1 to be followed up with a written apology.

The Tribunal found that Ms AA had been directly affected by the Respondent’s misconduct and

Ordained the Respondent in terms of Section 53(2)(bb) of the Solicitors (Scotland) Act 1980 to pay to Ms

AA the sum of £250 by way of compensation.


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