Scottish Solicitors' Discipline Tribunal

Appeal under s 42A: A C White

An appeal under s 42A of the Solicitors (Scotland) Act 1980 was made by Messrs A C White Solicitors, 23 Wellington Square, Ayr (“the appellants”) against a determination and direction made by the Council of the Law Society of Scotland. The Tribunal heard a debate on whether or not there was a valid appeal before it. The lay complainer had made a reference to the Ombudsman which resulted in the Ombudsman recommending reconsideration by the Society of the whole matter. This was done and the Society made a different determination which became a final decision. The Tribunal found that the first decision of the Society had been wholly supplanted by the second decision. The Tribunal further found that accordingly all rights flowing from the first decision had fallen and that there was no longer any valid appeal before the Tribunal, and accordingly nothing for the Tribunal to rule on.

John Gerard O’Donnell

A complaint was made by the Council of the Law Society of Scotland against John Gerard O’Donnell, solicitor, 15 Clarkston Road, Glasgow (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to comply with undertakings given to an individual and that individual’s solicitor, his unreasonable delay in having a lease completed and registered, his misleading the individual and the individual’s solicitor in that regard and his failure to advise the individual and the individual’s solicitor of the true position, his failure to comply with the Guidelines on Mandates 1998, his misleading the Society and his unreasonable delay on a number of occasions in responding to the reasonable enquiries of the Society.

The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that for a period of five years, with effect from 1 June 2009, 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 Society.

The Tribunal was concerned that as well as delaying in dealing with matters, the respondent had also misled the Society and an individual and another firm of solicitors with regard to what he had or had not done. The Tribunal felt that the respondent had shown contempt for the Society and others by his failure to be candid and failure to reply and to deal with matters. The Tribunal was not convinced by the explanation that this was wishful thinking on the part of the respondent. It is imperative that solicitors are honest at all times for the public to have confidence in the profession. The Tribunal noted the undertaking given on behalf of the respondent to wind up his practice within a period of three months. The Tribunal however considered that given the respondent’s health problems, there was a risk to the public in allowing him to continue to operate as a principal in private practice. The Tribunal has a duty to ensure the protection of the public and accordingly considered it appropriate to impose a restriction on the respondent’s practising certificate for a period of five years. This however would not take effect until 1 June 2009, by which time the respondent should have made arrangements to wind up his practice as per the undertaking given to the Tribunal.

David John Roberts Tod

A complaint was made by the Council of the Law Society of Scotland against David John Roberts Tod, solicitor, Tod & Mitchell, Solicitors, Terrace Buildings, The Cross, Paisley (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure between 1 November 2005 and 31 October 2006 and between 1 November 2006 and 31 October 2007, to keep a record of his compliance in undertaking the required hours of continuing professional development and his failure to produce a record of compliance on demand. The Tribunal censured the respondent and fined him in the sum of £2,000.

The Tribunal was concerned that the respondent had failed in two consecutive years to keep a record of his compliance with the continuing professional development requirements. It is imperative, if the public is to have confidence in the legal profession, that solicitors keep themselves up to date and are able to show that they have undertaken the required hours of continuing professional development as directed by their professional body. In the circumstances the Tribunal considered that a censure plus a fine of £2,000 was an appropriate penalty.