Scottish Solicitors' Discipline Tribunal

Sarah Ann Carmichael

A complaint dated 8th October 1998 was made by the Council of Law Society of Scotland against Sara Ann Carmichael, Solicitor, who formerly carried on practice under the name of Messrs Aitken and Carmichael at Newton St Boswells and now residing at 1 Meadowbank Road, Kirknewton (the Respondent).

After the hearing on 9 December 1998, the Tribunal found the respondent guilty of professional misconduct in that in relation to four matters, she delayed unreasonably to reply to correspondence from the Law Society of Scotland, and formal notices served under Section 42C of the Solicitors (Scotland) Act 1980.

In the Note which accompanied the Tribunal’s decision, it was observed that the Law Society has a statutory duty not only to represent the interests of solicitors in Scotland but also the interests of the public in relation to the solicitors’ profession, and it is in this context that the Law Society makes enquiries upon receiving a letter of complaint. Solicitors have a corresponding duty to respond to such enquiries in order that the Law Society can provide a meaningful reply. Where a solicitor fails to respond, as in this case, the Law Society is unable to comment, and the absence of a satisfactory explanation can be damaging to the reputation of the profession. By persistently ignoring the successive communications which were addressed to her, utter contempt towards the Law Society. The Tribunal found such conduct wholly unbecoming a solicitor and it was in these circumstances that the Tribunal had no alternative but to order that the Respondent’s name be struck off the Roll of Solicitors in Scotland.

Donald Stewart Duncan

A complaint was made by the Council of the Law Society of Scotland against Donald Stewart Duncan, Solicitor, 35 West High Street, Forfar (the Respondent).

The Tribunal found the Respondent guilty of professional misconduct in respect of his breach of Rules 6 (3), 11(3), 12(1), 14 and 15 of the Solicitors (Scotland) Accounts Rules 1996, the Money Laundering Regulations 1993 and consequently Rule 16 of said Accounts Rules and Rule 3(1) of the Solicitors (Scotland ) Accounts Certificate Rules 1997, and in respect of his failure to record Standard Securities and Discharges timeously in the Register of Sasines.

The Tribunal accepted that each of the matters giving rise to the various breaches of the Accounts Rules was not in itself of grave concern, but they indicated an overall failure on the part of the Respondent, extending over a considerable period. The number of transactions in which the Respondent had not recorded deeds timeously was also seriously disturbing. Taken together, it was apparent that there had been serious shortcomings in the management of the Respondent’s practice, giving rise to major doubt regarding his fitness to continue in business. Of greater concern however, was the Respondent’s failure to appreciate the overall gravity of his neglect, and his general demeanour caused the Tribunal to doubt whether he had the capacity to manage a practice.

With this background, the Tribunal made an order restricting for a significant period any Practising Certificate to be issued to the Respondent. The nature of the order is such that the Respondent will require to secure employment with a firm where he can be adequately supervised, and the Tribunal will only entertain an application for removal of this restriction when the Respondent can demonstrate from at least five years satisfactory employment, that he has the capacity to practise unsupervised.

Deryck de Maine Beaumont

A complaint was made by the Council of the Law Society of Scotland against Deryck de Maine Beaumont, Solicitor, of Balnaguard, Pitlochry (the Respondent).

The Tribunal found the Respondent guilty of professional misconduct in that he failed to settle Counsel’s fees and delayed unconscionably to respond to the reasonable enquiries of the Law Society in relation to three separate matters.

The Respondent was censured and fined in the sum of £2,000.

It is long established that upon a solicitor instructing Counsel, the solicitor accepts personal responsibility for that Counsel’s fee. The Tribunal found it disturbing that on two separate occasions, the Respondent gravely neglected his professional duty in this regard.

The Respondent admitted an earlier finding of professional misconduct when he had been censured and fined in the sum of £5,000 also in respect of his failure to reply to the Law Society. That failure had occurred over the same period as the subject matter of the present Complaint. If that Complaint had been heard at the same time as the previous Complaint, the Tribunal would have imposed a more significant penalty upon the Respondent at the earlier Hearing and consequently the Tribunal directed that the Respondent should again be censured and bear a further and substantial fine.

John Michael Harvey Ferries

A complaint dated 10th July 1998 was made by the Council of the Law Society of Scotland against John Michael Harvey Ferries, Solicitor, (the Respondent) of Messrs Carle Duthie & Ferries, 18 North Silver Street, Aberdeen, and residing at 48 Fountainhall Road, Aberdeen.

The tribunal found the respondent guilty of professional misconduct in that:

• He carried on practice as a solicitor from 1st November 1997 to 24th June 1998 well knowing that he did not have a Practising Certificate and
• He carried on practice as a solicitor between the same dates 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 one year. 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 8th December 1998 when the written Findings of the Tribunal were intimated to the Respondent.

• 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,
• 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…

The respondent had personal difficulties and problems with his health, and these circumstances had contributed to his decision not to continue in business. Nevertheless he elected to maintain his office with a view to selling or winding up his practice and continued to hold substantial funds for clients.

His failure to have a current Practising Certificate was in itself serious, but of even more concern to the Tribunal was the absence of any Professional Indemnity Insurance. Although the Respondent might not have been actively engaged in any legal work, he had been, on his own admission, still responsible for certain matters which had not been finally would up, and if a claim were to arise, there was no certainty that he would have had sufficient personal funds to settle such claim if liability were established.

The absence of any active steps towards taking out a Practising Certificate and arranging Indemnity Insurance, even after service of the Complaint, demonstrated that the Respondent still did not appreciate the gravity of his neglect, and the Tribunal   considered it appropriate and indeed also in the interests of the Respondent himself, that a heavy sanction was imposed upon the Respondent, namely to suspend him from holding a Practising Certificate, and that for one year, in the knowledge of the Respondent will  thereafter have to give notice to hold a certificate; and it will then be a matter for the Law Society to determine whether the Respondent is then fit to hold such a certificate.

It was of great concern to the Tribunal that the Respondent still held significant client funds and client papers and the Tribunal therefore directed that the order was to take effect at the earliest possible date.

Nigel Rodney Duncan

A complaint dated 7th May 1998 was made by the Council of the Law Society of Scotland against Nigel Rodney Duncan, Solicitor, 131 Newhaven Road, Edinburgh (the Respondent).

The Respondent had been instructed by a bank to prepare Standard Securities over two properties. The Tribunal found the Respondent guilty of professional misconduct in respect that

• He delayed unconscionably to respond to the reasonable enquiries of the bank for delivery of the title deeds of the properties and 
  
• He delayed unconscionably to respond to the reasonable enquiries of the Law Society and to deliver the remaining title deeds despite several reminders and two expired statutory notices.

In respect of the foregoing, the Tribunal censured the Respondent and fined him in the sum of £3000.

The Tribunal separately found that the Respondent had provided the bank with an inadequate professional service in respect of his failure to record the Standard Security and deliver the title deeds for one of the properties and the Tribunal made a direction requiring the Respondent to make a payment to the bank of the sum of £300 as compensation.

The Respondent admitted a prior finding of this Tribunal on 30 July 1997 when he was censured and fined in the sum of £1000 in respect of misleading statements and failing to reply to the Law Society.

The Tribunal was informed that in relation to the particular transaction, the relative Disposition and Standard Security had indeed been prepared, but were inadvertently left in the file. In the meantime, the loan to the client had been repaid, rendering it unnecessary to record the Standard Security over that property.

The Tribunal took the whole mitigating circumstances into account, but it remained that the Respondent persistently ignored a series of letters from the bank and a number of further communications from the Law Society. Notwithstanding the recent fine imposed for an analogous matter, the Tribunal considered it appropriate that the Respondent should be liable for a further and substantial fine.

It is a matter of good fortune that the bank had no reason to invoke the provisions of the Standard Security and that the relative advance had since been repaid. Nevertheless, by the Respondent’s neglect, the bank was exposed to risk and it was apparent from the number of letters written to the Respondent, that the bank was put to considerable trouble as a result of the Respondent’s failure to record the Standard Security and deliver up title deeds, and the Tribunal accordingly made an order under Section 53A of the Solicitors (Scotland) Act 1980 in recognition of the additional work of the bank in having to write a succession of letters to the Respondent.