Scottish Solicitors' Discipline Tribunal

Peter MacIntosh Aikman

A complaint was made by the Council of the Law Society of Scotland against Peter MacIntosh Aikman, solicitor, Aikman Bell, Edinburgh. The Tribunal found the respondent guilty of professional misconduct in respect of: his breach on two occasions of rule 6 (1) of the Solicitors (Scotland) Accounts etc Rules 2001, his breach of his client’s specific instructions, his breach on five occasions of paras 5.1.1, 5.1.2 and 5.10.3 of the CML Handbook, his breach on one occasion of para 5.9.1 of the CML Handbook, his breach on two occasions of the CML Handbook, para 5.8, and his breach on four occasions of the Birmingham Midshire’s specific stipulations that cases where the seller had owned the property for less than six months and back-to-back transactions were not acceptable.

The Tribunal censured the respondent and fined him in the sum of £1,000. Institutional lenders are owed the same duties of care as any other client. It must be clearly obvious to any practitioner that he has a duty to report material and unusual features of any transaction to his client. In each of the transactions involved, the lender had explicitly advised the respondent that he required to comply with the CML Handbook. The handbook had been instituted to help prevent mortgage fraud and emphasise the reporting duties on the part of a solicitor. It made it perfectly plain that the respondent had a duty to report back-to-back transactions, increases in price, deposits being provided by third parties, and the purchasers obtaining loans in addition to the finance being provided by the lender. The respondent had patently failed to report any of these matters. Additionally, on two occasions the respondent had intromitted with the lender’s finance where he had specific instruction from the lender that he could only do so if he had complied with the CML Handbook, which amounted to a clear breach of rule 6 of the Accounts Rules.

Taking into account that the respondent had met face to face with all the purchasers, that the transactions had not included many of the other serious aggravating factors often seen in CML Handbook cases, that the respondent had displayed remorse, that he had taken steps to ensure such conduct would not be repeated, and that the conduct complained of had spanned some six months, where the respondent had an otherwise unblemished record spanning many years, the Tribunal considered that this case could be dealt with by way of a censure. However, given that the respondent had overlooked his duty of care to the lenders in circumstances that put the lenders and consequently the profession at risk, the Tribunal considered that a fine in addition to censure was appropriate.

Forbes Gillies Leslie

A complaint was made by the Council of the Law Society of Scotland against Forbes Gillies Leslie, solicitor, Glasgow. The Tribunal found the respondent guilty of professional misconduct in respect of his breach of rule 4 of the Solicitors (Scotland) Accounts etc Rules 2001.

The Tribunal censured the respondent and fined him in the sum of £1,500.

It is imperative that solicitors comply with the provisions of the Accounts Rules in order to ensure protection of the public and protect the reputation of the profession. In this case the respondent breached rule 4 due to a deficit on the client account for a period of four and a half months, and the Tribunal considered this sufficiently serious and reprehensible as to amount to professional misconduct. The Tribunal, however, took account of the fact that the respondent was extremely remorseful and contrite, had fully co-operated with the Society from the outset, had picked up the failure prior to the Society inspection, had put things in place to ensure that the same mistake did not happen again, and that no member of the public was adversely affected by his conduct. The Tribunal was satisfied on the basis of the submissions made on his behalf that there was no risk of a similar situation arising in future, and did not consider there was any need to restrict the respondent’s practising certificate to protect the public.

John Raymund MacDonald

A complaint was made by the Council of the Law Society of Scotland against John Raymund MacDonald, solicitor, Rosewell, Midlothian. The Tribunal found the respondent guilty of professional misconduct in respect of his failure to inform various lenders, prior to intromitting with loan funds over properties, that the sellers of the properties to his client had owned the various properties for a period less than six months, contrary to clause 5.1.1 of the CML Handbook; his failure to inform the various lenders prior to intromitting with loan funds that neither he nor the firm had control over all of the funds paid to the selling agents in respect of the purchase prices, contrary to the CML Handbook; his failure to inform the various lenders prior to intromitting with the loan funds that his clients were paying much higher prices than the sellers had paid when they acquired the properties, despite a requirement to do so in terms of the CML Handbook; his failure to submit a suspicious activity report to SOCA in advance of settling the transactions as he was required to do in terms of the Proceeds of Crime Regulations; and his failure to comply with the instructions from his clients, the lenders, failure to comply with the principles of the CML Handbook, and failure to act diligently and with the utmost propriety.

The Tribunal ordered the respondent’s name be struck off the Roll of Solicitors in Scotland.

A solicitor when acting for both lender and borrower in a conveyancing transaction requires to act with absolute propriety and to protect the interests of the lender with the same degree of care and responsibility as is given to a purchaser. In this case, the respondent failed to act in accordance with the conditions of the loans. He had a duty to report the unusual circumstances of these transactions to the lenders, to afford them the option to consider whether they should be lending in these circumstances or whether there was a possibility that a seller was participating in a gratuitous alienation which could later be challenged, which might affect the validity and legality of the standard security in their favour. The respondent was personally responsible for a large number of transactions over a three month period involving multiple lenders and more than one development. He flagrantly breached the terms of the CML Handbook, did not ensure prior securities were cleared, and failed in some of the cases to comply with his obligations under the Money Laundering Regulations. The respondent also failed to report the circumstances to SOCA, which the Tribunal considered to be a very serious matter. The obligation to report is necessary, having regard to the importance of not facilitating mortgage fraud. The Tribunal considered that the reputation of the profession and the protection of the public are of paramount importance, and given the serious nature of the respondent’s conduct in this case, the Tribunal considered it had no alternative other than to strike the respondent’s name from the Roll.

Roderick G Mickel

A complaint was made by the Council of the Law Society of Scotland against Roderick G Mickel, formerly of Graham Mickel & Co, Crieff. The Tribunal found the respondent guilty of professional misconduct in respect of: his breach of rules 4, 6 and 21 of the Solicitors (Scotland) Accounts etc Rules 2001 in taking a loan from Mrs D without her instructions and/or authority, without the client having taken independent legal advice and advising the client that the loan was to another client when in fact it was to the respondent; his breach of rule 6 of the aforesaid Accounts Rules in that he uplifted funds as fees from the client ledgers for two executries and funds from the client ledger of Miss O, the funds being for his own use; and his failure to display the necessary qualities of honesty, truthfulness and integrity in using clients’ funds for his own use.

The Tribunal ordered the respondent’s name be struck off the Roll of Solicitors in Scotland.

The Accounts Rules repeatedly breached in this case are clearly in place to protect clients and represent a fundamental duty on the part of any solicitor. There were four separate incidents of misuse of clients’ funds over a period of just under two years. The respondent’s conduct was a clear case of professional misconduct. While the Tribunal had regard to the respondent’s co-operation, a medical report lodged on his behalf and the fact that no client at the end of the day sustained any loss, the respondent’s conduct in all the matters before the Tribunal was clearly dishonest, and a wilful and deliberate course of conduct extending over a considerable period. By breaching the Accounts Rules in such a way, the respondent had presented a clear danger to the public and behaved in a manner likely to seriously damage the reputation of the profession. A solicitor must behave at all times with honesty, truthfulness and integrity. The respondent’s conduct displayed none of these things and could only be viewed as disgraceful and dishonourable to an extent that demonstrated that he was not a fit and proper person to be a solicitor. The Tribunal noted two previous findings of misconduct against the respondent. In these circumstances the only conclusion was that the respondent’s name be struck from the Roll.

Colin George Horne Wilson

Complaints were made by the Council of the Law Society of Scotland against Colin George Horne Wilson, solicitor, Aberdeen. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of: (1) his misrepresentation, deception and misleading of four separate clients, colleagues and the employment

tribunal; (2) his breach of s 23 of the Solicitors (Scotland) Act 1980 and articles 6 and 7 of the Code of Conduct for Scottish Solicitors 2002 and his misrepresentation, deception and misleading of clients and the courts in relation thereto; (3) his acting on behalf of clients without the benefit of professional indemnity insurance and intromitting with funds from those clients without operating a designated client account; and (4) his failure or delay in responding to correspondence and statutory notices issued by the Society.

The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland.

The Tribunal was extremely concerned by the respondent’s conduct in this case. It considered this to be a course of conduct involving significant misrepresentations and deceptions that had persisted over a lengthy period of time. The respondent’s conduct involved clients, a fellow solicitor, the employment tribunal and the courts. It clearly presented a danger to the public and was likely to be seriously damaging to the reputation of the legal profession. The respondent acted on behalf of clients without the benefit of professional indemnity insurance and without a practising certificate. He had failed or delayed to respond to correspondence from the Society in relation to all of the individual complaints. The Tribunal concluded that the respondent’s conduct was so serious and so reprehensible that the only possible penalty was to strike his name from the Roll.