Scottish Solicitors’ Discipline Tribunal

Neil Forsythe McPherson

A complaint was made by the Council of the Law Society of Scotland against Neil Forsythe McPherson, Solicitor formerly of 57 John Finnie Street, Kilmarnock and now of 55 Titchfield Street, Kilmarnock (“the Respondent”). The complaint was first brought to the Tribunal on 25 June 2000. The Tribunal determined that the complaint had not been brought “within a reasonable time” and accordingly determined that the prosecution of the complaint was in breach of article 6(1) of the European Convention on Human Rights and the complaint was dismissed. A petition of appeal was presented by the Law Society to the Court of Session who allowed the appeal and remitted the complaint back to the Tribunal. A procedural hearing was held on 30 October 2002 and the Tribunal repelled the Respondent’s motion to have the complaint dismissed and adjourned the hearing of the complaint to a future date.

The Tribunal considered that although the subject matter of the complaint was not particularly complex, the human rights issues which were raised by the Respondent were complex and complicated. It was the Tribunal’s decision which triggered the appeal to the Court of Session and the Tribunal did not consider that the Law Society could be blamed for the further period that had elapsed due to the procedure involved in the appeal. Both parties’ representatives had changed their arguments between the first Tribunal hearing and the Court of Session appeal. The Tribunal did not consider that either the Tribunal or the Court of Session caused an unreasonable delay in the progress of the proceedings. There had been no irredeemable or actual prejudice caused to the Respondent by the delay. The Respondent had continued to work during the period.

The Tribunal also considered whether or not it would be in the public interest to allow the matter to continue. The Tribunal held that the interests of the legal profession and the interests of the public in general outweighed any possible prejudice to the Respondent and allowed the proceedings to continue.  

At the conclusion of the substantive hearing on 13 March 2003 the Tribunal found the Respondent guilty in cumulo of professional misconduct in respect of his breaches of his duties to his employers and fellow solicitors by criticising and denigrating the professional attitude and competence of one of his employers to two of his clients and criticising and making derogatory comments about the personal life of one of his employers to two of his clients, his visiting a client represented in a criminal matter at his home on two separate occasions and obtaining signed mandates transferring the client’s business from his employer’s firm to himself in breach of the Code of Conduct for Criminal Practitioners and contrary to rule 5 of the Solicitors (Scotland) (Advertising and Promotion) Practice Rules 1995 and his communicating with a client represented by other solicitors whilst he was in custody knowing that he was so represented and without communicating with those solicitors. The Respondent was censured.

There were a number of other charges in the complaint of which the Respondent was found not guilty. The Tribunal did not consider that the individual actings of the Respondent which were proved were in themselves sufficient to amount to professional misconduct. However the Tribunal were particularly concerned with regard to the Respondent visiting a client at his home while he was a client of his employers and obtaining signed mandates from the client transferring business away from his employers to himself. The Tribunal took into account the very long and unusual history of the complaint when imposing penalty. The Tribunal also ordered that no expenses be due to or by either party.

Neil Forsythe McPherson

A Complaint was made by the Council of the Law Society of Scotland against Neil Forsythe McPherson, Solicitor, 55 Titchfield Street, Kilmarnock (“the Respondent”). The Tribunal found the Respondent guilty of professional misconduct in respect of the circumstances which gave rise to four convictions for driving a motor vehicle whilst drunk contrary to the Road Traffic Acts and in breach of Article 7 of the Code of Conduct for Solicitors, holding Practising Certificates issued by the Law Society of Scotland in 1989. The Tribunal Censured the Respondent and fined him in the sum of £500 to be forfeit to Her Majesty.

The Tribunal consider that one of the essential qualities of a solicitor is integrity which extends to the personal as well as professional conduct of a solicitor. The Tribunal was particularly concerned that the Respondent had four convictions for drunk driving, conduct which is regrettably disgraceful and dishonourable and brings the profession into disrepute. The Tribunal was however impressed by the good references produced from fellow professionals with regard to the Respondent’s professional work since the commission of the last offence. It was clear that the Respondent was making great efforts to control his ill-ness and had been successfully running his sole practice for the past eighteen months. The Tribunal did not consider that the public would be at risk by allowing the Respondent to continue as a sole practitioner. The Tribunal marked the disapproval of the Respondent’s conduct by imposing a fine of £500.