Scottish Solicitors Discipline Tribunal

Michael Sandison Allan

A complaint was made by the Council of the Law Society of Scotland against Michael Sandison Allan, solicitor, Aberdeen. The Tribunal found the respondent guilty of professional misconduct in respect of his causing the company of which he was the controlling mind and sole director to be subject to a seven-year period of disqualification, and his incurring a seven-year period of disqualification, thereby bringing the profession into disrepute. The Tribunal censured the respondent and fined him in the sum of £1,000.

The respondent got himself into difficulty in operations not connected with his legal practice. His failure to supervise his staff and exercise control led to his company being subject to the maximum period of disqualification. This clearly brought the legal profession into disrepute. In this case the solicitor also personally incurred a seven-year disqualification. Solicitors require to maintain the same standards of propriety in relation to commercial ventures as are expected of them in professional practice. The Tribunal considered that solicitors need to be reminded of the importance of maintaining appropriate standards in other aspects of their life as well as in their professional life.

Although the Tribunal considered the respondent’s conduct to be at the lower end of the scale of professional misconduct, it was concerned by his lack of supervision and control of his business, which although not directly related to his legal practice was cause for concern. In the circumstances it imposed a fine of £1,000 in addition to the censure.

Stephen Gerard Fagan

A complaint was made by the Council of the Law Society of Scotland against Stephen Gerard Fagan, Fagan Solicitors, Airdrie. The Tribunal found the respondent guilty of professional misconduct in respect of his unreasonable delay and/or failure to respond to the reasonable requests and enquiries of the Scottish Legal Aid Board, both written and verbal. The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that for a period of three years from 1 October 2015 any practising certificate held or issued to the respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer as may be approved by the Practising Certificate Subcommittee of the Council.

The Tribunal considered that the respondent was sloppy and disorganised. His conduct had consequences and put a lot of people to a lot of trouble. The Board, a publicly funded body, was frustrated in its efficient operation by the respondent’s delay. It was also inconvenienced and put to a lot of time and trouble. The respondent’s delay also had an effect on the secondary complainer, causing her further stress and inconvenience. In the circumstances the Tribunal considered the respondent’s conduct sufficiently serious and reprehensible to amount to professional misconduct.

It appeared to the Tribunal that the respondent was continuing as a sole practitioner with a heavy workload, debt problems, difficulties with depression and without having shown insight or taken corrective steps to prevent a recurrence of past failures. It had real concerns that the public would be at risk if the respondent continued to operate as a sole practitioner and accordingly imposed a restriction on his practising certificate.

The Tribunal further ordained the respondent in terms of s 53(2)(bb) of the Solicitors (Scotland) Act 1980 to pay the secondary complainer the sum of £250 by way of compensation in respect of inconvenience and stress resulting fromthe misconduct.

John Clarke Muir

A complaint was made by the Council of the Law Society of Scotland against John Clarke Muir, of Muir Myles Laverty, Dundee. The Tribunal found the respondent guilty of professional misconduct in respect of his failure adequately to supervise his employees, who failed to abide by established practice and the duties owed to their clients, heritable security lenders, and in particular failed to report to the lenders unusual circumstances, to comply with their obligations in terms of the CML Handbook applicable to Scotland, and to act with absolute propriety to protect the clients’ interests. The Tribunal censured the respondent and fined him in the sum of £7,500.

The Tribunal has frequently made it clear that solicitors must always act in the best interests of their clients, including lenders. These were back-to-back transactions; the price paid by the mid-purchaser was less than the loan, there were connections between seller and purchaser, and elements of a revolving deposit scheme with the seller contributing to the price which was then refunded. None of this was reported to the lender, which would have allowed the lender to consider whether they should be lending or whether the seller might be vergens ad inopiam and participating in a gratuitous alienation which could be challenged. The unusual features in these numerous transactions ought to have raised alarm bells. The respondent seriously let down his lender clients. Some of the circumstances were such that he should have reported matters to SOCA; this caused the Tribunal particular concern. The fact that solicitors get involved in these types of transactions without complying with their CML Handbook obligations is extremely damaging to the profession’s reputation.

The Tribunal accepted that the respondent had not personally undertaken these transactions, otherwise it might have considered striking his name from the roll. It has previously made it clear that a solicitor is not expected to carry out personally all work instructed, but if they decide to delegate any work, there remains a duty of reasonable supervision and they must accept personal responsibility for any improper actions which result from a failure of reasonable supervision, which is a matter for their professional judgment taking into account the importance of the work and experience of those being supervised. In this case the respondent treated his roles as supervising partner, cashroom partner and proceeds of crime compliance partner in a cavalier fashion which had the potential for lending clients to suffer loss. The Tribunal, however, took account of his previously unblemished record, the fact that he pled guilty to the complaint as amended (albeit on the day of the Tribunal), and that he appeared to be genuinely remorseful. It also noted that there had not been any further similar problems at the respondent’s firm and steps had been taken to ensure that nothing like this happened in the future.

The Tribunal’s decision was appealed to the Court of Session, which refused the appeal.