Scottish Solicitors' Discipline Tribunal

John Atuahene

A complaint was made by the Council of the Law Society of Scotland against John Atuahene, solicitor, formerly of 72 Hawshead Road, Paisley and now at 16 Glentool Gardens, Moodiesburn, Glasgow (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his failure over a period of almost five months to record or register his client’s disposition whereby his client remained uninfeft; his misleading his clients GMAC Residential Funding in correspondence and in the report on title between 3 March and 5 July 2004, by advising them that there was an undelivered duly executed disposition when in fact the executed disposition had been delivered and by advising them that loan funds were to be used for the purchase of the property whereas in truth the purchase price of the property had already been paid and the loan funds were not being used for that purpose; and his intromitting between 23 June and 1 July 2004 with loan funds received from his clients GMAC Residential Funding for the purchase by his client of the property and utilising those funds for the provision of a loan to another party in connection with another property, all without the knowledge or authority of GMAC Residential Funding. The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that any practising certificate held or to be issued to the respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to and to being supervised by such employer or successive employers as may be approved by the Council of the Society or the Practising Certificate Committee, and that for an aggregate period of at least three years and thereafter until such time as he satisfies the Tribunal that he is fit to hold a full practising certificate.

The Tribunal heard evidence and was satisfied beyond reasonable doubt that the respondent was guilty in cumulo of professional misconduct in respect of most of the allegations in the complaint. The Tribunal was concerned by the respondent’s conduct. A solicitor acting for a purchaser in a conveyancing transaction has a duty to prepare and record perhaps as soon as practicable, and in any event within a reasonable time after payment of the price, a valid disposition. It is also imperative that solicitors represent the interests of the lender and act in accordance with the lender’s instructions. If solicitors are to mislead lenders it will undermine the crucial element of trust between lenders and their solicitors. It was also of concern to the Tribunal that it was clear from the respondent’s evidence that he did not appreciate the implications of what had happened or what could have happened. He displayed a lack of appropriate knowledge in dealing with conveyancing matters. The Tribunal was of the view that the respondent required to be supervised in order to protect the public.

Michael Alan Grant McNiven

A complaint was made by the Council of the Law Society of Scotland against Michael Alan Grant McNiven, The Granary, Skirling Mill, Biggar (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his conviction in contravention of s 5 of the Road Traffic Act 1988 and his driving while disqualified from driving by order of the court at a time when he was not covered by any policy of insurance. The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that for a period of six years any practising certificate held or to be 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 Society, said restriction to run concurrently with his existing restriction.

The Tribunal considers that one of the essential qualities of a solicitor is integrity, which extends to the personal as well as the professional conduct of a solicitor. The Tribunal has made it clear on a number of occasions that the Tribunal must demonstrate to the public that the profession of solicitors seeks to maintain the highest standards of conduct and that a solicitor cannot separate his personal conduct from his membership of the profession. The Tribunal considered that the respondent’s conduct in this case represented a serious departure from the standards expected from a member of this profession. Such an event and the inevitable publicity that followed is damaging to the reputation of the profession. The Tribunal was particularly concerned in this case that the respondent drove while disqualified only 13 days after the disqualification had been imposed, in flagrant breach of a court order. The Tribunal considered that this taken together with the conviction for drunk driving amounted to professional misconduct in cumulo. The Tribunal took account of the fact that the respondent had already suffered financial losses and had obtempered the punishments meted out by the court. The Tribunal was however very concerned that the respondent, in previous findings of the Tribunal, had been found to have a reckless disregard for the Society and had now shown in this case that he had a reckless disregard for the court. The Tribunal accordingly considered that in order to protect the public from a relapse into reckless behaviour, there should be a restriction on the respondent’s practising certificate for a period of six years. The Tribunal ordered this to run concurrent with the existing restriction imposed by the Tribunal in January 2004.

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 alleged failure between 21 May 2001 and 24 April 2003 to adequately supervise her employee and failure to have in place an effective system of supervision of her employees and for the protection of clients. The Tribunal made no finding of professional misconduct in respect of her failure to implement a mandate. The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that any practising certificate held or to be issued to the respondent shall be subject to such restriction as will prevent her while acting as a sole practitioner from employing any qualified assistant or trainee for an aggregate period of five years and thereafter until such time as she satisfies the Council or the Practising Certificate Committee of the Council of the Society that she is fit to supervise a qualified assistant or trainee.

Although answers were lodged by the respondent she did not attend the Tribunal hearing. The Tribunal heard evidence from witnesses and was satisfied beyond reasonable doubt that the respondent did not have sufficient systems in place to enable her to supervise qualified staff properly. Her assistant was able to open mail, which allowed him to intercept mail, and he also signed his own mail. It was clear that the respondent was not aware of what was going on due to insufficient systems being in place. The Tribunal noted that the respondent had previously been in the profession for 19 years and had not had any difficulties and was unfortunately subject to deception by her assistant. However if a solicitor decides to delegate work there remains a duty of supervision and a solicitor must accept personal responsibility for any improper actions which result from a failure of reasonable supervision. The Tribunal considered the most appropriate way of dealing with the respondent was to restrict her practising certificate to prevent her from employing qualified assistants or trainees for an aggregate period of five years while acting as a sole practitioner. The Tribunal was not satisfied beyond reasonable doubt that the respondent had failed to implement a mandate.

Paul Francis Belton; Shahid Sattar Pervez; Celine Bell

A complaint was made by the Council of the Law Society of Scotland against Paul Francis Belton, solicitor (“first respondent”), Shahid Sattar Pervez, solicitor (“second respondent”), and Celine Bell, solicitor (“third respondent”), all of 430 Victoria Road, Glasgow. The Tribunal found the first and second respondents guilty of professional misconduct in respect of their breach of rules 4, 6, 8, 9, 10, 11, 19 and 24 of the Solicitors (Scotland) Accounts etc Rules 2001, their persistent failure to stamp and record dispositions and relative standard securities timeously, and their failure to supervise the third respondent adequately. The Tribunal found the third respondent guilty of professional misconduct in respect of her failure to respond to the reasonable enquiries made of her by fellow agents and the Society, failure to respond to statutory notices from the Society, and her failure to implement a mandate timeously. The Tribunal found the first respondent guilty of professional misconduct in respect of his failure to respond to the reasonable requests of the Society for information and failure to respond to statutory notices. The Tribunal censured the first respondent, fined him in the sum of £5,000 and restricted his practising certificate for a period of 10 years with effect from

6 March 2006. The Tribunal censured the second respondent, fined him in the sum of £7,500 and restricted his practising certificate for a period of

10 years. The Tribunal censured the third respondent.

The Tribunal was extremely concerned by the first and second respondents’ persistent course of conduct in the face of warnings from the Society at various inspections. The Tribunal however was satisfied that this was not the result of wilful recklessness but of incompetence. It was clear that the first and second respondents were ill equipped to deal with the management of the firm and were unable to comply properly with the Accounts Rules. The first and second respondents seemed more concerned with increasing the amount of business coming into the firm than ensuring that the firm was running properly. This is not acceptable. The Tribunal however took account of the fact that the first and second respondents had got Gilmour Hamilton and Marjory O’Hara Accounting Services for Scottish Solicitors involved in August 2004 and steps were being taken to clear up the mess. The Tribunal also took account of the fact that there was no suggestion of dishonesty and no evidence that any clients suffered loss, despite there having been a potential for loss. The Tribunal considered that in order to protect the public, the first and second respondents should only work under supervision. In order to emphasis the seriousness with which the Tribunal viewed the continuing course of conduct, the Tribunal also fined the first respondent £5,000 and the second respondent £7,500 to take account of the fact that the second respondent was the cashroom partner for the majority of the period in question and was also directly responsible for the delay in the recording of deeds. In respect of the third respondent, the Tribunal felt that the third respondent had been left to deal with too much and considered that a censure would be sufficient penalty.