Scottish Solicitors' Discipline Tribunal

MAGNUS KNOWLES MOODIE

A complaint was made by the Council of the Law Society of Scotland against Magnus Knowles Moodie, Solicitor, 12 Bruntsfield Crescent, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his unreasonable delay in the recording of a disposition, standard security and discharge and his seeking to obtain the replacement costs of title deeds from his client by indicating that it was for the purpose of recording her title to the property. The Tribunal censured the respondent and directed in terms of section 53(5) of the Solicitors (Scotland) Act 1980 that for a period of three years any practising certificate held or issued to the respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer as may be approved by the Council or the Practising Certificate Committee of the Council of the Law Society of Scotland.

The Tribunal were concerned by the respondent’s actions in purchasing replacement copies of lost title deeds and seeking to obtain this sum from his client, indicating that it was for the purpose of recording her title. A solicitor has a professional duty not to misstate the factual position to his client. The Tribunal took into account the respondent’s previous good record, the fact that he had entered into a joint minute and the numerous references received on his behalf. The Tribunal however felt it necessary in the public interest to restrict the respondent’s practising certificate for a period of three years.

RONALD McKENZIE

A complaint was made by the Council of the Law Society of Scotland against Ronald McKenzie, 211A Albert Street, Dundee (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to render a fee note to his client which clearly and definitively advised the client of the fee that she was being charged, his failure to provide his client with a full and accurate accounting of his intromissions in the conveyancing transaction and his failure to respond to the reasonable requests of the Society for information. The Tribunal censured the respondent and directed in terms of section 53 (5) of the Solicitors (Scotland) Act 1980 that any practising certificate held or issued to the respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer or successive employers as may be approved by the Council or the Practising Certificate Committee of the Council of the Law Society of Scotland and that for an aggregate period of at least five years.

The Tribunal made no finding of professional misconduct in respect of the averments contained in article 5.2 of the complaint. The Tribunal was not satisfied beyond reasonable doubt that the respondent’s firm had charged grossly excessive fees in respect of the conveyancing transaction.

It is the duty of a solicitor to render to his client a fee note which leaves the client in no doubt as to the amount of the fee which the client is being charged, and to send to the client at the appropriate time an accounting in a conveyancing transaction which fully and accurately discloses the same. Failure to respond to the enquiries of the Society hampers the Society in the performance of its statutory duties and brings the profession into disrepute. The Tribunal considered that in order to protect the public, it was necessary to place a restriction on the respondent’s practising certificate. The Tribunal imposed an aggregate period of restriction to ensure that the respondent works with proper supervision for a period of at least five years in order to provide the respondent with the maturity and confidence to resume normal practice.

NICHOLAS GERARD McCORMICK

A complaint was made by the Council of the Law Society of Scotland against Nicholas Gerard McCormick, Solicitor, 28 Victoria Street, Newton Stewart (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to look after the interests of a number of his clients and lenders by failing to record deeds, his breach of rules 8, 9, 11, 19 and 24 of the Solicitors (Scotland) Accounts etc Rules 2001 and his breach of regulation 16(2) of the Solicitors (Scotland) (Incidental Investment Business) Practice Rules 2001. The Tribunal censured the respondent, fined him in the sum of £3,000 to be forfeit to Her Majesty and directed in terms of section 53(5) of the Solicitors (Scotland) Act 1980 that the respondent’s practising certificate be subject to a condition that the books and records of the respondent’s practice be inspected by the Council of the Law Society of Scotland no later than 31 January 2005 and thereafter at six-monthly intervals on five occasions, the last of which to take place no later than 30 September 2007, all such inspections to be at the expense of the respondent.

A joint minute was lodged admitting the facts, averments of duty and averments of professional misconduct in the complaint. The Tribunal were concerned by the respondent’s breaches of the Accounts Rules, but none of these were major breaches. The Tribunal was more concerned with regard to the non-recording of deeds. A solicitor acting for the purchaser of heritable property has a duty to record or register a disposition in favour of his client within a reasonable time of payment of the price. If this is not done the purchaser is exposed to risk. If a standard security is not recorded within a reasonable time of the loan being made, the lending institution remains unsecured for the loan. Failure to record deeds timeously brings the profession into disrepute. The Tribunal noted that the respondent had previously been before the Tribunal in January 2004 but that these matters predated this.  The Tribunal also noted that the respondent had taken steps to put systems in place to prevent a reoccurrence of the problem. The Tribunal considered imposing the usual restriction on the respondent’s practising certificate restricting him to acting as an employee to a firm approved by the Law Society. The Tribunal was however mindful of the scarcity of solicitors in rural areas and balancing this, the Tribunal were of a view that a censure together with a fine of £3,000 and a restriction on the respondent’s practising certificate ensuring six-monthly inspections for the next three years would be sufficient to protect the public interest.