Scottish Solicitors' Discipline Tribunal

JAMES ROBERT MCNEIL

A complaint dated 10 July 1998 was made by the Council of the Law Society of Scotland against James Robert McNeil, Solicitor, 77 High Street, Cockenzie (“The Respondent”).  The Tribunal found the Respondent guilty of professional misconduct in that

1. he carried on practice as a solicitor from 1 November 1997 to 10 July 1998 well knowing that he did not have a Practising Certificate and
2. he carried on practice as a solicitor from 1 November 1997 to 10 July 1998 well knowing that he did not have Professional Indemnity Insurance in terms of the Solicitors (Scotland) Professional Indemnity Insurance Rules 1995.

The Tribunal suspended the Respondent from practice for a period of two years.  The Tribunal also made a direction in terms of Section 53(6) of the Solicitors (Scotland) Act 1980 and accordingly the order took effect on 6 November 1998 when the written findings of the Tribunal were intimated to the Respondent.

Section 23 of the said Act provides that

1. Any person who practises as a solicitor or in any way holds himself out as entitled by law to practise as a solicitor without having in force a practising certificate shall be guilty of an offence under this Act unless he proves that he acted without receiving or without expectation of any fee, gain or reward, directly or indirectly.
2. Without prejudice to any proceedings under subsection (1), failure on the part of a solicitor in practice to have in force a practising certificate may be treated as professional misconduct.

Having regard to the period during which the Respondent has practised, the Tribunal was less than satisfied with the Respondent’s explanation that he had to resolve an outstanding claim before he could renew his Professional Indemnity Insurance.  The Respondent was well aware of his duty to have a current Practising Certificate and his apparent decision in April 1998 to cease practice did not explain the absence of a Practising Certificate either before or after that date.  The major concern was, however, that the Respondent carried on practice from 1 November 1997 without Professional Indemnity Insurance.  The Tribunal had no information regarding the Respondent’s capital position and if any circumstances arose in respect of the Respondent’s practice after 1 November 1997, there was considerable doubt whether the Respondent might have the resources to meet such a claim from his own funds.

With this background, the Tribunal regarded the Respondent’s failures as being particularly serious, and were therefore of the opinion that any sanction of less than suspension would not reflect the gravity of the Respondent’s conduct.  The Tribunal also had regard to the continuing doubt about the present position of the Respondent’s practice and it was therefore ordered that this decision would take effect at the earliest possible date.

GEORGE LAW AND NANETTE ISOBEL GRAHAM MARR

A complaint was made under the provisions of Section 53C of the Solicitors (Scotland) Act 1980 by the Council of the Law Society of Scotland against George Law and Nanette Isobel Graham Marr (“the Respondents”) who practised as solicitors under the name of Messrs Graham Marr and McLachlan at 9 Princes Street, Falkirk, and who now reside at Devon Lodge, Dollar, Clackmannanshire.  Section 53 of the said Act states that:

1. Where a solicitor fails to comply with a direction given by the Council under Section 42A (including, as the case may be, such a direction as confirmed or varied on appeal by the Tribunal or the Court) within the period specified in the notice relating to that direction given to the solicitor under Section 42B(1) or such longer period as the Council may allow, the Council shall make a complaint to the Tribunal and may appoint a solicitor to represent them in connection with the complaint.
2. If after inquiry into a complaint made under subsection (1) the Tribunal is satisfied that the solicitor has failed to comply with the direction the Tribunal may order that the direction, or such part of it as the Tribunal thinks fit, shall be enforceable in like manner as an extract registered decree arbitral in favour of the Council bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

On 2 October 1997 the Council of the Law Society had made a finding under Section 42A of the said Act that when the second Respondent had been a partner in the said firm of Graham Marr and McLachlan she had provided an inadequate professional service to a client.  The Council of the Law Society directed that in terms of Section 42A(2) of the said Act a payment of £1,000 should be made to the client by way of compensation, by the Respondents as partners in the firm of Graham Marr and McLachlan at the time the relevant services were rendered.  On 5 February 1998 a similar finding was made in respect of another client and in that matter the Respondents were required to pay the sum of £500 to the client.  In each case, the Respondents failed to make payment to the respective clients.

Although there was some evidence at the Hearing on 1 October 1998 that the Respondents had made certain payments in the preceding month, there was no receipt or other acknowledgment from either client nor was it established that the clients had received cleared funds in respect of the amount due to each of them.

The Tribunal had regard to the material circumstances and the precise terms of Section 53C(2), and was of the opinion that Orders should be made, particularly in the light of the assurance on behalf of the Law Society, that no action would be taken for a period of time to allow for confirmation that funds represented by the cheques which had been drawn by the Respondents, had indeed been received by the respective clients.

As the Respondents had had ample time to make the various payments before the Complaint was lodged with the Discipline Tribunal, the Respondents were found liable in the whole expenses of these proceedings.

JOHN WILKIE

A complaint was made by the Council of the Law Society of Scotland against John Wilkie of 3 Merrick Gardens, Ibrox, Glasgow (“the Respondent”), who practised as a solicitor in Glasgow until 31 October 1995 and whose name was removed from the Roll of Solicitors, following a statutory notice, on 21 September 1996.

The powers of the Scottish Solicitors’ Discipline Tribunal, in the event of professional misconduct being established, are contained in Section 53 of the Solicitors ((Scotland) Act 1980, and Subsection 53(3A) provides that certain of these powers may be exercised in relation to a former solicitor, notwithstanding that his name has been struck off the Roll or that he has since the date of the misconduct ceased to practise as a solicitor.

The material events in this Complaint occurred between 1989 and 1995 prior to the removal of the Respondent’s name from the Roll.

On 1 October 1998, the Discipline Tribunal found the Respondent guilty of professional misconduct in that

1. he intercepted and purported to answer letters from the Law Society, well knowing that they were not addressed to him,
2. he framed responses which purported to have come from his senior partner when the senior partner had no knowledge of the correspondence,
3. he wilfully deceived the Law Society by issuing letters which were specifically designed to give the impression to the Law Society that the concerns of a bank were being dealt with by the senior partner of his firm, and
4. he purported to need further time to answer the concerns of the said bank when his firm’s file, containing at least some of the answers, was already available.

The Respondent did not appear, and the Tribunal did not have the assistance of any submission on behalf of the Respondent, but the Fiscal for the Law Society explained that even when the Respondent was still in practice, he had a serious health problem which required extended treatment every day.  There was no indication that the Respondent was not in employment or that he had significant funds.

Subsection 53(3A) referred to above, restricts the Tribunal’s powers in this particular case to that of a censure and/or fine.  Having regard to the circumstances as established, the Tribunal determined that the Respondent should be censured, but having regard to the probability of the Respondent’s limited resources and his liability for expenses, it was considered that no useful purpose would have been served by imposing a fine.

SARAH ANN CARMICHAEL

A complaint was made by the Scottish Solicitors’ Discipline Tribunal against Sarah Ann Carmichael, Solicitor, sometime of Tweedside Road, Newtown St Boswells, and now of 1 Meadowbank Road, Kirknewton, Edinburgh (“the Respondent”).

The Tribunal found the Respondent guilty of professional misconduct in that she

1. stated to a client that she had done things in a professional capacity on behalf of the client, when she well knew that she had not done these things,
2. implied that the staff in the Sheriff Clerk’s office at Jedburgh had acted or had failed to act in ways inconsistent with their professional duties, particularly implying incompetence or dishonesty,
3. implied a failure in the Royal Mail service when she well knew that the document had never been posted, and
4. framed a deposition, and arranged for the said client to sign that deposition, which contained a statement that the client’s father had died intestate, when the Respondent knew that he had left a will.

The Tribunal made no finding in relation to the charges that the Respondent had practised as a solicitor or held herself out as entitled by law to practise, with effect from 1 November 1997, without a current Practising Certificate or holding Professional Indemnity Insurance, in that it was not established the Respondent had indeed practised over that period.  The Tribunal fined the Respondent in the sum of £500 and directed in terms of Section 53(5)) of the Solicitors (Scotland) Act 1980 that for a period of five years with effect from 31 October 1998 any Practising Certificate held or issued to the Respondent should be subject to such restriction as would limit her to acting as a qualified assistant to such employer as might be approved by the Council of the Law Society of Scotland.

The Respondent did not attend the hearing on 1 October 1998, and in considering the penalty to be imposed, the Tribunal was seriously handicapped by not having any information regarding the Respondent’s background circumstances, except that she was apparently no longer in practice.  In the opinion of the Tribunal, the Respondent’s acting in seeking to mislead the client and in failing to respect the solemnity expected upon the execution of a Deposition, showed that in any event, the Respondent was not fit to resume practice as a principal, and with this background and to demonstrate that the profession regards the Respondent’s conduct as having been wholly unacceptable, it was ordered that the Respondent should be censured and fined and that for a significant period she should only be able to practise as an employed solicitor under supervision.

BRUCE LOUDEN CLARK GORDON

The Discipline Tribunal made no finding of professional misconduct in relation to a Complaint made by the Council of the Law Society of Scotland against Bruce Louden Clark Gordon, Solicitor, 45 Queen Street, Edinburgh (“the Respondent”).

As at the commencement of the Practice Year 1997/98, the Respondent renewed Professional Indemnity Insurance but failed to renew his Practising Certificate until after the Complaint was served upon him.

The Respondent accepted that he had received the initial communication from the Law Society regarding the renewal of his Practising Certificate, but in the particular circumstances, the Tribunal was not satisfied that the Respondent had received the subsequent reminders which were sent to him.  The Respondent was accordingly in breach of the statutory requirement contained in Section 23(1) of the Solicitors (Scotland) Act 1980 but the Tribunal considered that in the exceptional circumstances, the Respondent’s oversight, although serious in itself, fell narrowly short of what is recognised to be professional misconduct.

Having regard to the Respondent’s failure to comply with the statutory requirement, it was appropriate that the Law Society took this Complaint to the Tribunal; and with these considerations the Respondent was found liable to pay modified expenses of the Complaint.