SSDT Decision: John Oliver

SCOTTISH SOLICITORS’ DISCIPLINE TRIBUNAL

JLSS REPORT

LAW SOCIETY OF SCOTLAND-v-JOHN OLIVER

A Complaint was lodged by the Council of the Law Society of Scotland against John Oliver, Solicitor, Hawick. It was alleged that the Respondent may have been guilty of professional misconduct by acting in a conflict of interest in respect that he acted both for an executor in the administration of an estate and for two beneficiaries of that estate in relation to their interest as beneficiaries. 

The Respondent raised a Preliminary Plea that the Complaint was irrelevant for want of specification and moved for dismissal of the Complaint on that basis. He argued that the Complaint did not provide him with fair notice of the allegations against him. The key issue was whether or not beneficiary A was the Respondent’s client. The Respondent argued that beneficiary A was not a client and said that the Council had not demonstrated that an implied retainer was in place. Parties agreed on the legal requirements for fair notice and implied retainer. The dispute was in relation to whether or not the Complaint provided enough detail for it to progress any further through the disciplinary process.

The Tribunal said that the Complaint was the foundational building block of the Complainer’s case. It was clear that the onus was on the Complainers to demonstrate the way in which their averments supported the case against the Respondent. They had failed to do so on this occasion. There were no averments on which the Complainers could rely to establish a solicitor/client relationship with either of the beneficiaries and, on that basis, the Complaint did not meet the required threshold.

The Tribunal upheld the Respondent’s Preliminary Plea and granted the accompanying motion to dismiss the Complaint.