Scottish Solicitors' Discipline Tribunal

Messrs Simpson & Marwick WS and Paul F Wade, Solicitor

Appeal under section 42A

An appeal was lodged with the Scottish Solicitors’ Discipline Tribunal under the provisions of section 42A (7) of the Solicitors (Scotland) Act 1980 by Messrs Simpson & Marwick WS and Paul F Wade, Solicitor, 91 West George Street, Glasgow (“the Appellants”), against the Finding by the Council of the Law Society of Scotland (“the Law Society”) dated 22 May 2003 that the Appellants had provided an inadequate professional service in relation to their client Uist Builders (Construction) Ltd, 20 Francis Street, Stornoway, Isle of Lewis and a Direction that the Appellants should pay Uist Builders (Construction) Ltd £100 by way of compensation. The Tribunal having considered the appeal Quashed the said Determination and Direction and Found the Law Society liable in the expenses of the Appellants and of the Tribunal.

The Tribunal found that the Appellants had been instructed by the insurer, Independent Insurance (“IICL”). The Appellants only wrote directly to Uist Builders (Construction) Ltd (UBC) when IICL went into provisional liquidation. At this stage UBC sent a mandate requesting that the papers be sent to another solicitor. The Tribunal was of the view that IICL were clearly the Appellants’ client. That being so, the Appellants would require to obtain the consent of IICL before transmitting the files to UBC. This was in fact the advice from the Law Society’s professional practice department. The Tribunal accordingly found it hard to see how the Appellants could have been found to have provided an inadequate professional service by failing to forward the file prior to having obtained the consent of IICL. It was clear from the reporter’s report that there had been no prejudice to UBC from the file not being produced.

The Tribunal were concerned in this case that the Law Society had not given the Appellants any reason for discounting the report of Professor Hennessy. When a finding of inadequate professional service is made it is important that the Law Society make it clear exactly in what way the Appellant has provided a service which is “not of the quality which could be reasonably be expected of a competent solicitor”.

The Tribunal accordingly Quashed the Determination and Direction of the Law Society.

John Mark Sutherland-Fisher

A Complaint was made by the Council of the Law Society of Scotland against John Mark Sutherland-Fisher, Solicitor, formerly having a place of business at Royal Bank Buildings, High Street, Dingwall and now residing at North Cadboll House, North Cadboll, Fearn, by Tain, Ross-shire (“the Respondent”). The Tribunal found the Respondent guilty of professional misconduct in respect of his breach of rules 4(1), 12(1), 12(4) and 13 of the Solicitors (Scotland) Accounts Rules 1992, his breach of rules 6, 9 and 12 of the Solicitors (Scotland) Accounts Rules 1997, his concealing the existence or the extent of the deficit on his client account, his removing client’s funds to which he was not entitled in breach of the Accounts Rules and for the purposes of funding his practice and his devising and implementing a scheme which allowed him to manipulate client monies to his personal benefit in breach of the Accounts Rules and for the purposes of funding his practice. The Tribunal ordered that the name of the Respondent, John Mark Sutherland-Fisher be struck off the Roll of Solicitors in Scotland.

The Tribunal were gravely concerned by the Respondent’s actions. The use of clients’ funds to which he was not entitled for the purposes of funding his practice is a complete breach of trust and his conduct was regrettably disgraceful and dishonourable and wholly unbecoming of a solicitor. The Tribunal considered that the Respondent was not a fit and proper person to remain on the Roll of Solicitors in Scotland.

Robert Thomas Ross Ballantyne

A Complaint was made by the Council of the Law Society of Scotland against Robert Thomas Ross Ballantyne, Solicitor, 41 Wilson Street, Perth (“the Respondent”). The Tribunal found the Respondent guilty of  Professional Misconduct in respect of his failure to respond timeously, openly and accurately to the reasonable enquiries made of him by the Law Society concerning the affairs of clients, his breach of rules 8, 9, 10, 11 and 24 of the Solicitors (Scotland) Accounts Etc Fund Rules 2001; and his failure or unreasonable delay in presenting for registration, conveyancing deeds timeously following upon settlement and failure to present to the stamp office deeds which required to be stamped upon settlement. The Tribunal ordered that the name of the Respondent be struck off the roll of solicitors in Scotland.

The Tribunal were concerned with the number of breaches of the Accounts Rules showing inattention and disarray in the record keeping of the Respondent. The Tribunal were also concerned with regard to the delay in recording and registering of deeds. In this case the deeds were unrecorded for a considerable period of time putting the purchasers and lenders at risk. The Respondent did not see fit to attend the Tribunal and did not provide any explanation or make any submission in mitigation. The Tribunal were particularly concerned about the Respondent’s cavalier attitude to the running of his practice and the potential risk to his clients. Taking the numerous matters in cumulo and bearing in mind the paramount need of protection of the public, the Tribunal were of the opinion that the Respondent was not a fit and proper person to remain on the roll of solicitors in Scotland.