Scottish Solicitors' Discipline Tribunal

Catriona MacFarlane

A complaint was made by the Council of the Law Society of Scotland against Catriona Margaret MacFarlane, solicitor, Newton Mearns, Glasgow (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of her failure to disclose to her client the extent of her knowledge of the actings of her husband, a mortgage broker, her failure to advise her client timeously to seek separate independent advice, and her failure to withdraw from acting for her client, all in breach of the Code of Conduct for Scottish Solicitors 2002.

The Tribunal censured the respondent, fined her in the sum of £2,500, and directed in terms of s 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 her to acting as a qualified assistant to and to being supervised by such employer as may be approved by the Council or the Practising Certificate Committee of the Council of the Society.

It was clear to the Tribunal that the respondent’s conduct amounted to professional misconduct. The respondent had a duty by 7 February 2007 to give a full disclosure to her client of her state of knowledge about missing funds appropriated by her husband and the fact that she was married to Mr MacFarlane. The Tribunal considered that there was not only a conflict of interest in this situation but also an absolute duty on the respondent to advise her client to seek separate independent advice. The respondent’s conduct left her client in a vulnerable position for 19 days, which clearly caused a lot of distress to her client and his wife and left them exposed to an unacceptable risk. The Tribunal considered that the respondent had acted very irresponsibly and that her conduct was completely contrary to the standards expected of a solicitor. The Tribunal considered that a restriction on the respondent’s practising certificate was required in order to ensure protection for the public and that the respondent is properly supervised. The Tribunal also imposed a fine of £2,500 to reflect the seriousness with which the Tribunal viewed the respondent’s behaviour.

John James Smith

Three complaints were made by the Council of the Law Society of Scotland against John James Smith, solicitor, John J Smith & Co, Dalmuir, Clydebank (“the respondent”). The Tribunal found the respondent guilty of professional misconduct singly and in cumulo in respect of his failure to reply to correspondence from the Society; his failure to obtemper statutory notices issued by the Society; his failure to keep the books and records of his practice written up as required by Solicitors (Scotland) Accounts etc Rules 2001; his allowing his client account to operate in deficit; his failure to invest clients’ funds as required by rule 11 of the said Rules; his failure to lodge an accounts certificate timeously in accordance with rule 14 of the said Rules; his failure to comply with the Money Laundering Regulations in terms of rule 24; his failure to designate clients’ cheques with the client name on the payee line in terms of rule 6 of the said Rules; his failure to record deeds timeously; and his failure to obtain written authority for inter-client transfers in terms of rule 6 of the said Rules.

The Tribunal censured the respondent, fined him in the sum of £5,000 and directed in terms of s 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 Society no later than December 2009 and thereafter at six-monthly intervals on six occasions the last of which is to take place no later than December 2012, and that such inspections be at the expense of the respondent.

The Tribunal was concerned about the various breaches of the Accounts Rules and the fact that four separate inspections between February 2007 and April 2008 had highlighted numerous failures. It is imperative that members of the profession comply with the Accounts Rules in order to maintain the highest standards of this profession. The Accounts Rules are there to protect the public and the respondent’s numerous breaches of different rules were of serious concern. The Tribunal however noted that no one had lost money or suffered as a result of the respondent’s actions. The Tribunal was satisfied that the respondent’s basic integrity was not in question.

The Tribunal also considered that a solicitor acting on behalf of a client in connection with a conveyancing transaction is well aware that he has a duty to record deeds or have these registered within a reasonable time.

The Tribunal noted the respondent’s position as a sole practitioner and considered that, in the public interest, it would be appropriate for the Society to carry out additional six-monthly inspections of the respondent’s books, commencing December 2009, to ensure that the progress which had been made recently in keeping the practice books up to date was sustained and to ensure that the interests of the firm’s clients were protected.