Scottish Solicitors' Discipline Tribunal

Peter McDowall Murray and Andrew Alexander Murray

A complaint was made by the Council of the Law Society of Scotland against (first) Peter McDowall Murray, solicitor of A B & A Mathews, Newton Stewart, and (second) Andrew Alexander Murray, solicitor, of Hunter & Murray, Stranraer. The Tribunal found the first respondent guilty of professional misconduct between 29 April 2008 and 30 May 2008 in failing adequately to supervise his employee, the second respondent, and permitting him to act in the purchase of a property in circumstances where the firm and in particular the first respondent acted for the seller, a property developer, all in breach of rule 5 of the Solicitors (Scotland) Practice Rules 1986. The Tribunal found the second respondent guilty of professional misconduct in respect of his acting in the same transaction where was a clear conflict of interest between the respective clients, all in breach of rules 3 and 5 of the 1986 Rules.

The Tribunal censured the respondents and fined them in the sum of £500 each.

It was clear to the Tribunal that the firm was acting in a conflict of interest situation. Solicitors must always act in the best interests of their clients and acting in a conflict of interest situation is clearly not in such best interests. There is a duty on a solicitor to fulfil his professional obligations and also to supervise his staff to ensure that they comply with the Society’s rules. The 1986 Rules ensure that clients are fully informed of any potential conflict of interest, to enable them to make an informed decision. Acting contrary to these rules amounts to professional misconduct. The Tribunal however accepted that the conflict situation occurred due to a mistake and was a result of bad judgment. On the respective culpability of the respondents, the first respondent was responsible for supervision and had to take more overall responsibility for what occurred. However he had an exemplary record within the profession over a period of 30 years, whereas the second respondent had a previous finding of professional misconduct against him. The Tribunal accordingly considered that the sentences for both respondents should be the same. It took account of the fact that there had been no demonstrable loss.

Gregor Kerr Robertson Mair

A complaint was made by the Council of the Law Society of Scotland against Gregor Kerr Robertson Mair, solicitor, Biggart Baillie LLP, Edinburgh. The Tribunal found the respondent guilty of professional misconduct in respect of his failure to advise the money laundering reporting officer in his firm of a set of circumstances when he was under a duty to do so, his continuing to act for his client in the knowledge of his client’s fraud, his preparation of a discharge of a standard security in circumstances where there existed an obvious risk of further fraud in relation to execution of the discharge, and his forwarding the deed for execution other than via the solicitors whom he knew to be acting and failing in terms of the Solicitors (Scotland) Practice Rules 1986 to give advice in writing about the possible legal consequences of signing the deed and about the entitlement to legal advice.

The Tribunal censured the respondent and fined him in the sum of £10,000.

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