Scottish Solicitors' Discipline Tribunal

DONALD STEWART DUNCAN

A Complaint was made by the Council of the Law Society of Scotland against Donald Stewart Duncan, Solicitor, Sit-ma-lain, Bowriefauld, by Forfar (“the Respondent”). The Tribunal found the Respondent guilty of professional misconduct in respect of his overcharging fees in the winding up of an executry estate and his failure to render a fee note to a client and failure to gain written authority from a client to debit the ledger account of an executry estate contrary to rule 6(1)(d) of the Solicitors (Scotland) Accounts Rules 1997. The Tribunal ordered that the name of the Respondent be struck off the Roll of Solicitors in Scotland.

The Tribunal were gravely concerned by the Respondent’s actions. A solicitor acting in the winding up of an executry has a professional duty to ensure that, when taking interim fees from funds held by him for work carried out during the course of winding up, these fees are in all the circumstances a reasonable estimate of and fairly reflect the work actually carried out at the time that the interim fee is taken. It is the duty of a solicitor not to overcharge fees to a client, particularly where the solicitor is in the possession of funds which enable him to take these fees.

In the absence of any explanation provided by the Respondent, the Tribunal found that the overcharging of fees was either wilful or grossly reckless. This taken together with the failure to obtain authority from a client to debit a ledger account with fees and also taking into account a previous finding of misconduct against the Respondent, led the Tribunal to conclude that it had no option but to strike the Respondent’s name from the Roll of Solicitors in Scotland.

MICHAEL CHARLES GRAY

A Complaint was made by the Council of the Law Society of Scotland against Michael Charles Gray, Solicitor, 115 Morrison Street, Edinburgh (“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 of Scotland and his failure to act in accordance with article 7 of the Code of Conduct for Solicitors Holding Practising Certificates issued by the Law Society of Scotland in 1989 by causing or permitting to be published, an advert in the Yellow Pages which was deliberately inaccurate or misleading. The Tribunal Censured the Respondent and Fined him in the sum of £3,000. The Tribunal also found that the Respondent had failed to comply with the Determinations and Directions given by the Council of the Law Society of Scotland under section 42A of the Solicitors (Scotland) Act 1980 within the periods specified and Directed that four orders be issued under section 53C of the said Act.

The Respondent was not present or represented at the hearing. The Tribunal was satisfied that the Respondent had received the Complaint and noted that he had chosen not to lodge answers and to go on holiday without advising the Tribunal. The Tribunal proceeded in the absence of the Respondent. The Tribunal was particularly concerned by the placing of the advert in the Yellow Pages by the Respondent, which suggested that his firm was competent to provide professional advice on matters of English law when the Respondent was not a qualified English lawyer. The placing of the advert in the Yellow Pages clearly gave the Respondent’s firm a competitive advantage and the Tribunal found that it was deliberately inaccurate and misleading in that it suggested that the Respondent’s firm was competent to provide professional advice on matters of English law when the Respondent knew that his firm was not competent to do so. The Tribunal was also concerned by the Respondent’s failure to reply to the Law Society of Scotland in connection with various complaints. The Tribunal noted that the Respondent had already had his practising certificate restricted for a period of 10 years on 29 May 2003 and the Tribunal was of a view that the public would be protected by the restriction already imposed. However, in view of the serious view the Tribunal took of the Respondent’s misleading advert, the Tribunal imposed a further fine of £3,000.

MARIE ANGELO LAND

A Complaint was made by the Council of the Law Society of Scotland against Marie Angelo Land, Solicitor, 29 Nicolson Street, Greenock (“the Respondent”). The Tribunal found the Respondent guilty of professional misconduct in respect of her failure to respond timeously or at all to the reasonable enquiries made of her by the Law Society of Scotland concerning the affairs of a client and her failure to produce files relating to the complaint despite being served with formal notices. The Tribunal Censured the Respondent and imposed a fine of £1,000.

The Tribunal has made it clear on a number of occasions that it takes a serious view of failure to respond to the Society. Failure to respond hampers the Society in the performance of its statutory duty and is likely to bring the profession into disrepute. In this case a lot of letters and notices were sent to the Respondent and no satisfactory reply was forthcoming. The Respondent also left it to the last minute to get representation before the Tribunal to fully answer the Complaint. It is clear that the Respondent is an experienced professional and should have known how important it is to comply with her professional obligations and to respond to enquiries from the Society. The Tribunal however took into account the fact that the Respondent had eventually entered into a joint minute and had a previously clean record.