Scottish Solicitors' Discipline Tribunal

David Haddow Campbell

A complaint was made by the Council of the Law Society of Scotland against David Haddow Campbell, solicitor, care of Balfour & Manson, Edinburgh. The Tribunal found the respondent not guilty of professional misconduct.

The Tribunal, which heard evidence over a number of days, considered this to be a very complex case which raised a number of difficult and interesting issues. It is unusual for expert evidence to be led before the Tribunal, but it was considered to be valuable in this case. However, it was for the Tribunal to decide whether the respondent’s conduct amounted to professional misconduct.

The majority of the facts in the complaint were agreed. The respondent was an executor, and the residue of the estate was bequeathed to the deceased’s spouse. There was a son from a previous marriage who had an entitlement to legal rights. The respondent, as executor, after researching the law, considered that he had a duty to inform the son. The widow did not wish the son to be advised of his entitlement. The respondent’s solution was to ingather the estate and then appoint the widow as sole executor, advising her of her duty to pay the son in respect of his legal rights. As at the date of death, there was no clear authority on the obligation of an executor to inform a potential legal rights claimant of their entitlement.

The Tribunal considered that the respondent’s opinion with regard to his duty in this respect only crystallised after he had researched the matter, and by this time he found himself as sole executor in a potentially conflicting situation. It was clear from the expert evidence that, at the time of the respondent’s actings, law and practice was uncertain on this matter. If the respondent had advised the son of his legal rights, he would have been in a conflict situation between the son and the widow. The respondent had a duty to administer the will, and the beneficiary had told him in no uncertain terms that he must not tell the legal rights claimant. The respondent could not just resign, because he was sole executor. The Tribunal accepted that the respondent thought he could fulfil his obligation as executor by assuming the widow as executor and then resigning while there were still enough funds in the estate for the legal rights obligations to be met. What the respondent did was to protect himself and his firm for any future claim. The Tribunal did not consider that the respondent compromised himself professionally in acting in the way that he did. While it might have been best practice for the respondent either to have resigned earlier or resigned both as executor and solicitor, his failure to do so could not be categorised as professional misconduct.

Scott Campbell

A complaint was made by the Council of the Law Society of Scotland against Scott Campbell, solicitor, Dundee. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his failure to comply with the common law standard applicable to a solicitor acting on behalf of a lender in a conveyancing transaction and, in particular, his failure to report to his client an unusual circumstance and to comply with the explicit instructions as provided for within the CML Handbook applicable to Scotland; his failure to act with absolute propriety and to protect the interest of his client being the lender in respect of each transaction; his failure to comply with regs 5 and 14 of the Money Laundering Regulations 2007 and rule 24 of the Solicitors (Scotland) Accounts etc Rules 2001; and his failure to supervise properly and adequately a paralegal in his employ.

The Tribunal censured the respondent.

When a solicitor takes instructions from a lender, he owes that lender the same duties of care as to any other client. If that solicitor delegates the work, he remains under a duty to supervise appropriately the individual directly involved. The nine transactions in question disclosed a complete lack of supervision, to such a degree that the respondent’s conduct could be described as nothing less than reckless. In each transaction, it was perfectly clear that matters required to be intimated to lenders that in fact were not. If these matters were not immediately identified in a letter of instruction, they were clearly obvious at an early stage. It was the respondent’s complete failure to offer any supervision to his paralegal that led to a multiplicity of failures to report significant issues to lenders. The CML Handbook is a fundamental part of the lenders’ instructions. The conditions there et out are to safeguard the lenders. Condition 5.1.1 makes it perfectly plain that back-to-back transactions are to be reported to the lender. The price uplifts in all of these transactions were substantial and affected the amount of loan offered. Failures such as the respondent’s are damaging to the reputation of the profession and led to failure to safeguard the lenders’ interests. Taking into account all that had been said for the respondent, his misconduct could be seen to fall at the lower end of the scale, and a censure was an appropriate penalty.

Grant Euan Turner Docherty

A complaint was made by the Council of the Law Society of Scotland on behalf of the secondary complainers against Grant Euan Turner Docherty, solicitor, of DWF Biggart Baillie, Edinburgh. The Tribunal found the respondent guilty of professional misconduct in respect of his failure to maintain the standards of propriety expected of him as a member of the legal profession, this failure being of sufficient gravity and culpability to be capable of bringing the profession into disrepute.

The Tribunal censured the respondent and fined him in the sum of £7,500.

The respondent had sent text messages to the secondary complainers which, by their nature, number and content were clearly not just inappropriate, but matters of great concern to the Tribunal. Some of these texts had clearly been sufficient to place the secondary complainers in a state of fear and alarm, as was admitted by the respondent. This conduct was not something done in the heat of the moment but involved repeated acts over a period of time. These texts disclosed a complete loss of restraint and sense of judgment on the part of the respondent that had persisted for that period. The repeated use of such intemperate language, completely lacking in dignity and restraint, clearly fell short of the conduct expected of a competent and reputable solicitor and could only be regarded as serious and reprehensible. In these circumstances a censure alone was not sufficient to mark the gravity of the respondent’s misconduct. However, having regard to his previous good conduct, and the number of difficult issues he faced at that time, both personal and professional, that might have influenced his conduct, the Tribunal felt that there was no risk to the public if the respondent was allowed to continue with a full practising certificate. Taking these factors into account, the Tribunal held that a censure plus fine was an appropriate penalty.

Leslie Somerville

A complaint was made by the Council of the Law Society of Scotland against Leslie Wilson Somerville, solicitor, Somerville & Co, Stirling. The Tribunal found the respondent guilty of professional misconduct in respect of his acting in a conflict of interest situation in relation to the sale and purchase of a flat.

The Tribunal censured the respondent and fined him in the sum of £5,000.

The respondent had acted in an obvious conflict of interest situation by entering into negotiations for the purchase of a flat by his own property company when he was also instructed in the sale on behalf of a client. As a result of those instructions, the respondent was privy to detailed information about his client’s financial problems, which could objectively be seen as him seeking to make personal gain out of his client’s misfortune. The Tribunal noted that while the sale did not ultimately proceed for other reasons, at no stage did the respondent reconsider his position and withdraw from acting. The Tribunal was of the view that the respondent’s conduct was a very serious breach of trust and would be viewed by competent and reputable solicitors as serious and reprehensible and therefore as sufficient to meet the Sharp test. The Tribunal was concerned about the circumstances which gave rise to the conflict of interest, and felt that a solicitor of the respondent’s experience should have recognised the conflict at an early stage and taken steps earlier to avoid it.

Alan James White

A complaint was made by the Council of the Law Society of Scotland against Alan James White, solicitor, Milnathort. The Tribunal considered a preliminary point raised by the respondent and found that he could not be guilty of professional misconduct, as not only was the mandate not addressed to him personally but it was also not he who failed to implement it. The Tribunal accordingly upheld the respondent’s preliminary plea and dismissed the complaint.

The Tribunal heard evidence over a couple of days in connection withwhat happened when the mandate came into the respondent’s office. The Tribunal noted that the mandate was not addressed to the respondent; it was marked for the attention of the senior partner. It also related to the senior partner’s client rather than the respondent’s client. It was also clear from the evidence that the letters in respect of the mandate were not written by the respondent. Although the respondent was client relations partner, managing partner and cashroom partner, the Tribunal, on the basis of the evidence, considered that he had no real authority within the firm and it was more of a notional role. At no point was the respondent in control of the responses sent on behalf of Howat Associates in respect of the mandate. In all the circumstances, the Tribunal found that, as a junior partner, the respondent had no control over his firm’s response to the mandate, and consequently insufficient culpability to warrant a finding of professional misconduct being attached to him in respect of the unreasonable delay in failure to implement the mandate.

www.ssdt.org.uk