Scottish Solicitors Discipline Tribunal

David Richard Blair Lyons and Duncan Hugh Drummond

A complaint was made by the Council of the Law Society of Scotland against (first) David Richard Blair Lyons, solicitor and (second) Duncan Hugh Drummond, solicitor, both partners in the firm of Lyons Laing & Co, Greenock.

The Tribunal found the first respondent guilty of professional misconduct in respect of (1) his failure to respond to correspondence from the Society; (2) his failure to obtemper statutory notices; (3) his taking of grossly excessive fees from executry estates; (4) his failure to comply with the requirements of the Accounts Rules; (5) his taking of fees from the sale proceeds of a property to which he was not entitled; (6) his failure to obtemper letters of obligation; (7) his taking of fees without rendering fee notes; (8) his embezzlement of the sum of £1,040,000 from the Bank of Ireland. The Tribunal ordered that his name be struck from the Roll of Solicitors in Scotland.

The Tribunal found the second respondent guilty of professional misconduct in respect of (1) his taking of grossly excessive fees from executry estates; (2) his taking of fees without rendering fee notes; (3) his failure to comply with the requirements of the Accounts Rules; (4) his failure to supervise his firm’s assistant, in breach of an undertaking given by him to the Society. The Tribunal ordered that his name be struck from the Roll of Solicitors in Scotland.

The first respondent made no appearance and the Tribunal heard evidence. The Tribunal was satisfied that the first respondent was guilty of a serious catalogue of offending. He had misappropriated funds from executry accounts. He had embezzled over £1,000,000 from the Bank of Ireland. He had breached Accounts Rules and had failed to respond to correspondence and statutory notices from the Society. Each of these matters was in its own right extremely serious misconduct. This course of conduct was so serious that the protection of the public required that the Tribunal strike the name of the first respondent from the Roll of Solicitors. Additionally there were previous findings against this respondent.

With regard to the second respondent, the parties had lodged a joint minute agreeing the facts, and agreeing that he was guilty of professional misconduct in cumulo by complicity in the actings of the first respondent in respect of taking grossly excessive fees, taking fees without rendering fee notes, and failing to comply with the Accounts Rules. The averment of professional misconduct by failing to supervise his firm’s assistant, in breach of the undertaking, was agreed. The second respondent admitted that for a 12 month period he had been aware that his partner had been removing funds from clients’ accounts with an explanation of using them to pay his firm’s obligations. He was aware of the mechanics of the removal of the funds and that these were in breach of the Accounts Rules. He had taken no real steps to protect his clients’ interests. He also admitted failing to supervise an individual who had had his practising certificate restricted by the Tribunal, having given a written undertaking to do so.

Although the second respondent had shown some degree of insight and regret before the Tribunal, the conduct admitted was of the most serious and reprehensible nature and the Tribunal found the second respondent guilty of professional misconduct. While he had provided information regarding the first respondent’s conduct, he had delayed in taking such steps for 12 months while continuing to benefit from the misappropriation of funds from executry accounts. He had already appeared before the Tribunal in relation to what he had described as difficulties he faced in relation to an arrangement where he practised from one office and the cashroom was based in another office. He had chosen to stay in business with his partner in the full knowledge of these arrangements and of his partner’s actions in removing the funds. In all of these circumstances, the Tribunal concluded that the public interest required that the second respondent’s name be struck from the Roll of Solicitors in Scotland.

Martha Anne Rafferty

A complaint was made by the Council of the Law Society of Scotland against Martha Anne Rafferty, solicitor, J R Rahman, Glasgow. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of her twice being convicted of drink driving offences under the Road Traffic Act 1988. The Tribunal censured the respondent.

The Tribunal has made it clear on previous occasions that a solicitor’s conduct in his or her personal life can amount to professional misconduct. While the respondent’s conduct took place in her private rather than her professional life, it had put other road users and members of the public at risk. On two occasions the respondent got behind the wheel of a car when she should not have been driving. She also failed to co-operate with the authorities in relation to providing breath tests.

The Tribunal considered that the public would regard these offences, committed by a solicitor, as a matter of serious concern. Her behaviour was a danger to the public and was behaviour that would not be tolerated by the public. Her conduct had to be considered as conduct not becoming of a solicitor and likely to bring the profession into disrepute. The Tribunal, however, was not persuaded that the respondent’s conduct amounted to a breach of rule B1.2 of the Practice Rules 2011, in that it did not consider that her conduct was dishonest, fraudulent or deceitful.

In the whole circumstances, the Tribunal considered that the two convictions, in cumulo, were serious and reprehensible enough to meet the Sharp test but were at the lower end of the scale.

John Fraser Tait

A complaint was made by the Council of the Law Society of Scotland against John Fraser Tait, Tait Macleod Solicitors, Falkirk. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his (a) undue delay in obtaining confirmation in the late Mr A’s estate during the period from July 2012 to April 2013; (b) failure to follow the secondary complainers’ instructions, provided in August 2012, to reclaim council tax paid during the late Mr A’s three-month hospital stay; and (c) failure to communicate effectively with the secondary complainers, and failure to keep them regularly informed about progress of the estate during the period from July 2012 to April 2013. The Tribunal censured the respondent.

The Tribunal agreed with the parties that the delay in progressing the executry, and reclaiming the council tax benefit, did not in themselves meet the standard necessary. However, the duties on a solicitor to keep clients advised of progress and to respond to correspondence are, as referred to in Smith & Barton, “of cardinal importance”. The respondent had failed to contact the secondary complainers despite repeated attempts on their part to obtain information. Such failure would inevitably cause anxiety on the part of the clients. His failure to progress the executry, deal with the council tax claim and most importantly to respond to the secondary complainers would be regarded by any competent and reputable solicitor as serious and reprehensible. The Tribunal accepted that his conduct was however at the lower end of the scale of professional misconduct. This appeared to be an isolated incident.

The respondent had tendered an early plea of guilty and was clearly remorseful and insightful. As a result, there appeared to be no risk to the public or requirement for supervision. He had acted appropriately in response to a complaint to the SLCC and had settled the claim for compensation immediately, minimising the impact on the victim. In all these circumstances, the Tribunal considered that the appropriate disposal was one of censure.