Scottish Solicitors' Discipline Tribunal

David William Dickson

A complaint was made by the Council of the Law Society of Scotland against David William Dickson, solicitor, 19 Waterloo Street, Glasgow (“the respondent”). The Tribunal found the averments of duty contained in article 3.2 and the averments of professional misconduct contained in article 4.1(b) of the complaint to be irrelevant and deleted them from the complaint. The Tribunal then resolved that the remainder of the averments in the complaint be considered at a hearing on a future date.

The Tribunal did not see how rule 6 of the Accounts Rules could be applicable in this case. Rule 6 clearly envisages there being two clients. In this case it was accepted that only one of the parties was a client of the respondent. The Tribunal could see no justification for widening the interpretation of the word “client” and in these circumstances the Tribunal found the averment with regard to breach of rule 6 to be irrelevant. The Tribunal however did not accept that it could not be professional misconduct for a solicitor, who receives money from a client and knows that it belongs elsewhere, to nevertheless take from it his own fees. The Tribunal accordingly continued the matter for a hearing on the merits.

At the substantive hearing the Tribunal made no finding of professional misconduct. The Tribunal found that there had been a delay in responding to certain correspondence but there had been no serial or extensive delay. The respondent had also replied timeously to some correspondence, and where he had failed to respond as requested, such delays amounted to a matter of days rather than weeks or months and the Tribunal did not consider that had materially delayed the Society’s investigations. The Tribunal accordingly did not consider that this amounted to professional misconduct. In relation to the deducting from funds belonging to X, fees due to him by Y, the Tribunal was not impressed by the evidence of the respondent but the correspondence clearly showed that the respondent was acting on his client’s instructions and had sent the money to solicitors acting on behalf of Ms X rather than to her directly. There was also evidence that funds were held as per the ledger card and were recorded in the respondent’s client account as funds “held by Y re X re dispute”. Taking all these matters into account the Tribunal could not be satisfied beyond reasonable doubt that the conduct amounted to professional misconduct.

Douglas Alexander Criggie

A complaint was made by the Council of the Law Society of Scotland against Douglas Alexander Criggie, solicitor, 70 Cumberland Street, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his breaches of rules 4, 6, 12, 13 and 15 of the Solicitors (Scotland) Accounts Rules 1997 and his breach of rules 4, 6, 8, 9, 14 and 21 of the Solicitors (Scotland) Accounts, Accounts Certificate, Professional Practice and Guarantee Fund Rules 2001. The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland and directed that this order shall take effect on the date on which the written findings are intimated to the respondent.

It is imperative for the public to have confidence in the profession that solicitors adhere to the terms of the Accounts Rules. In this case the respondent committed numerous and major breaches of the Accounts Rules over a number of years in apparent disregard of all the warnings given at the Society inspections of his books. The respondent showed a wilful disregard for the provisions of the Accounts Rules and his use of clients’ accounts to make firm payments was totally unacceptable. The respondent’s overcharging of fees in an executry to the extent of 300% was considered disgraceful conduct for a solicitor. The Tribunal noted that the respondent had co-operated and had entered into a joint minute, but taking all the circumstances into account, in order to protect the public and maintain the standards of the legal profession, the Tribunal considered the only suitable option was to strike the respondent’s name from the Roll of Solicitors in Scotland.

Publicity was deferred in this case due to the possibility of criminal proceedings.

Appeal under section 42A – Messrs Howat Associates

An appeal was made by Messrs Howat Associates, solicitors, 5 Kilmarnock Road, Mauchline (“the appellants”) against a finding of inadequate professional service by the Council of the Law Society of Scotland in relation to a client, and the determination and direction that the appellants should obtain at their own cost a breakdown of the fees charged to the client and should pay the client £500 by way of compensation. The Tribunal quashed the said determination and direction of the Society.

The Tribunal considered that the complaint was not with regard to a lack of information as to the detail of the work done but was a complaint that notwithstanding substantial expenditure of fees, the funds had been spent fruitlessly. The Tribunal, on the information available, found as a fact that the only mandate received by the appellants related to the titles and documents held by them. There was no mandate in relation to a complaint about the level of fees. The Tribunal noted that the appellants could have been criticised for providing information to a third party in the absence of an effective mandate. The Tribunal endorsed the expressed joint view that what had occurred after the heads of complaint were formulated and intimated to the appellants cannot be prayed as proof in respect of the complaint as intimated. The suggestion that the fee note itself, issued along with a covering letter, contained such a paucity of information that on its own this constituted a failure to communicate effectively with the client was not accepted by the Tribunal. The file showed an extremely high level of reporting to the clients with regard to the work being carried out, and what was contained in the fee note was sufficient to meet the requirements of the code of practice on communicating effectively with the client. Accordingly the Tribunal upheld the appeal and quashed the determination and direction of the Society. The Tribunal however did not consider that there was any matter of complexity to justify the instruction of junior counsel and repelled the motion for sanction for the expenses of instructing junior counsel. The Tribunal however found the Society liable in the expenses of the appellants and the Tribunal, calculated on the usual basis.

Appeal under section 42A – Rory Cradock

An appeal was made under s 42A of the Solicitors (Scotland) Act 1980 by Rory Cradock, solicitor, 1 East Craibstone Street, Aberdeen (“the appellant”) against a finding of inadequate professional service by the Council of the Law Society of Scotland, and a determination and direction that the appellant’s former firm should not be entitled to charge fees in relation to a transaction and that any such fees should be refunded and that the appellant’s former firm should pay the sum of £1,000 by way of compensation to the client in addition to the costs incurred by the client in the rectification of the defect in the conveyancing complained of. The Tribunal reserved judgment in relation to a preliminary plea of time bar in respect of the second head of complaint until the conclusion of the appeal hearing and allowed the parties to lead oral evidence at such hearing as they think fit. The Tribunal resolved that a hearing be allowed in respect of the appeal on a date to be fixed, and with regard to the issue of compelling witnesses directed the parties to the provisions of para 12 of sched 4 to the Solicitors (Scotland) Act 1980.

The Tribunal noted that it was normal procedure for s 42A appeals to be conducted by debate. The Tribunal was satisfied that having regard to the terms of para 11 of sched 4 to the 1980 Act, the parties in the case, particularly the appellant, may insist on requiring evidence to be led as set out therein. Accordingly the Tribunal allowed the parties to lead oral evidence at the substantive hearing as they think fit. In connection with the issue of compelling witnesses to attend, provisions are contained in para 12 of sched 4. The Tribunal accordingly deemed it inappropriate to consider at this time the issue of ordering the Society to reveal the identity of the reporter and the convener of the client relations committee who considered the matter. The Tribunal considered that this would be a matter to be decided by the sheriff court if an application was made by the appellant in terms of para 11 of the schedule.

Norman Douglas Paton Cathcart

A complaint was made by the Council of the Law Society of Scotland against Norman Douglas Paton Cathcart, solicitor, “Orotava”, Knockbuckle Road, Kilmacolm, Inverclyde (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to ensure that a standard security was registered in the register of charges timeously and thereafter to take appropriate remedial steps within a reasonable time to rectify that failure so as to protect the lender’s interest, his failure to respond to correspondence from clients, and his failure to respond to correspondence and statutory notices from the Society. The Tribunal censured the respondent and fined him in the sum of £3,000.

The Tribunal was of the view that the respondent had demonstrated a disregard for the welfare of his clients and their lender by his failure to record the standard security timeously in the register of charges. His continued failure to do so resulted in a lender’s interests not being sufficiently protected. The Tribunal noted that even when pressure was brought to bear by his clients he ignored that correspondence and failed to resolve the problem. The Tribunal had grave concerns that the matter remained unresolved. The Tribunal considered that the respondent should immediately investigate possible ways of resolving this matter, including passing the file on to other agents. In relation to the failure to respond to the Society, the Tribunal considered that such failure prevents the Society from properly investigating complaints and responding to the complainer. This puts the Society in an impossible situation and can also bring the profession into disrepute. The Tribunal took into account the fact that the respondent had a previously unblemished record and had admitted professional misconduct. The Tribunal also had regard to the fact that these failures had begun at a time when the respondent was suffering from health, domestic and business difficulties.

Ian Wilson Leitch

A complaint was made by the Council of the Law Society of Scotland against Ian Wilson Leitch, Solicitor, Linden House, 3 Inveresk Village, Musselburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to respond to the reasonable requests of the Society for information. The Tribunal censured the respondent and fined him in the sum of £500 to be forfeit to Her Majesty.

The Tribunal noted that the respondent’s failure only related to a single complaint, but given that he delayed for a period of seven months to reply to the Society, the Tribunal considered that this was sufficient to amount to professional misconduct. If solicitors do not reply to their professional body, it hampers the Society in the performance of its statutory duty. The Tribunal has made it clear on a number of occasions that this amounts to professional misconduct. In this case a number of letters and statutory notices were sent over a period of seven months before the respondent replied. The Tribunal noted previous findings against the respondent and in particular noted that the actions complained of in this complaint occurred at a time after the previous findings had been made. In the circumstances the Tribunal considered that as well as imposing a censure the respondent should also be fined £500.