Scottish Solicitors' Discipline Tribunal

Iain Laughland Sivewright Howie

A complaint was made by the Council of the Law Society of Scotland against Iain Laughland Sivewright Howie, solicitor of MacLeod & Co, Solicitors, Inverness (“the respondent”). The Tribunal made no finding of professional misconduct.

The Tribunal considered the complaint as amended and the submissions made by both parties, and in particular the statement of the respondent that he advised Mr and Mrs A verbally to take advice, preferably legal advice before signing the lease. The Tribunal had regard to the definition of professional misconduct as outlined in the case of Sharp v Council of the Law Society of Scotland 1984 SC 129. The Tribunal found that as no practice rule had been breached in relation to the matter and that as it was satisfied that the respondent did advise Mr and Mrs A verbally to take advice, the respondent’s failure to advise Mr and Mrs A in writing was not a serious and reprehensible departure from the standards expected of a competent and reputable solicitor. The Tribunal therefore considered that, in the particular circumstances of the case, the respondent’s conduct did not amount to professional misconduct.

William Graham Sutherland

A complaint was made by the Council of the Law Society of Scotland against William Graham Sutherland, solicitor, of Drever & Heddle, Solicitors, 56A Albert Street, Kirkwall (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to respond promptly to the reasonable enquiries made of him by the Society in respect of the affairs of a client despite repeated and numerous reminders sent to him by the Society.

The Tribunal considered that the respondent’s conduct fell at the lower end of the scale of professional misconduct. His failure to respond related only to one client and the Tribunal considered it unfortunate that the respondent had ended up before the Tribunal. In the circumstances, the Tribunal imposed the sanction of a censure.

Ceri Williams

A complaint was made by the Council of the Law Society of Scotland against Ceri Williams, solicitor, Law House, Ferguson Square, Cupar (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his acting where there was a conflict of interest in that he acted for Mr A’s settlement (“the settlement”) as a lender and Ms B as a borrower in the preparation of a standard security, ranking agreement and other documents forming the terms and conditions of the sums being secured and knowing that there was a joint venture agreement between the parties; his accepting instructions from Ms B to draft, have executed and then register two standard securities when he knew or ought to have known that in doing so Ms B was in breach of an agreement entered into with the settlement, the respondent had been instructed to put said agreement into place and in terms of the agreement he had not yet registered a standard security to protect the interests of the settlement; his preparation and execution of statutory declarations by Ms B and Mr C undertaking not to grant further securities over the property concerned when he knew or ought to have known that those clients had already granted a further two securities in breach of the agreement with the settlement; and while not having registered the standard security by Ms B and Mr C in favour of the settlement, his acting where there was a conflict of interest by preparing, having executed and registering two standard securities by Ms B and Mr C in favour of two other lenders in the knowledge that these securities were in breach of the agreement with and loan by the settlement, the loan by the settlement not having yet been secured by the said standard security over the property in favour of the settlement.

The Tribunal censured the respondent.

The Tribunal was satisfied from the submissions heard and the agreed productions that all averments of fact contained in the complaint were proved beyond reasonable doubt. The Tribunal did not accept the respondent’s argument that at the point that he was acting there was no conflict of interest. The Tribunal noted that this transaction involved a large loan over heritable property and considered that it was not similar to a transaction involving acting for a separating couple in the sale of a former matrimonial home. The Tribunal noted that this transaction did not fall within the exception contained in rule 5(1)(f) of the 1986 Practice Rules and therefore was one where a solicitor should not have acted for both parties. The Tribunal considered that the respondent having acted for both parties in a commercial transaction involving such an obvious conflict of interest amounted to a serious and reprehensible departure from the standards expected of a competent and reputable solicitor. The Tribunal therefore considered that the respondent’s conduct amounted to professional misconduct. In considering sanction, the Tribunal had regard to the fact that the conduct concerned one complex single transaction, to the respondent’s lengthy experience and previously unblemished record, that he admitted his failure before the Tribunal, and that no loss was averred.