Scottish Solicitors' Discipline Tribunal

Michael Chapman

Two complaints were made by the Council of the Law Society of Scotland against Michael Chapman, solicitor, Inverness. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his issuing cheques which he knew or ought to have known would not be met by his bank, his failure to make payment of the annual levy due for 2010 and 2011 in terms of the Legal Profession and Legal Aid (Scotland) Act 2007, his failure and/or delay in making payment of professional fees of £1,099.31 despite his firm having been paid for the case by the Scottish Legal Aid Board, his failure to pay one secondary complainer’s expenses timeously despite repeated requests and despite payment to the respondent by the Scottish Legal Aid Board, his failure and/or delay in paying another secondary complainer’s expenses for attending as a witness, his failure to reply to correspondence from the Scottish Legal Complaints Commission and his failure to respond to the Society notwithstanding the service of various notices.

The Tribunal censured the respondent, imposed a restriction on his practising certificate for a period of two and a half years, and made an award of £850 in favour of one secondary complainer and £821.09 in favour of the other.

The Tribunal considered that taking the two complaints together, the respondent’s conduct showed an unacceptable pattern of behaviour and made a finding of professional misconduct in cumulo. After hearing mitigation, the Tribunal considered that the respondent had got himself into an unfortunate situation due to his financial issues. However, he should not have continued in business on his own if he was unable to meet his obligations. The respondent had showed insight into his behaviour and had fully cooperated with the Society. The Tribunal considered that the best way to ensure protection of the public was to require the respondent to work under supervision at a firm approved by the Society. The Tribunal accepted assurances from the respondent and considered that he had learned a salutary lesson.

The respondent did not admit the secondary complainers’ compensation claims and evidence was led. The respondent had made generous offers prior to the hearing; the Tribunal considered it unfortunate that these had not been accepted and awarded less than the offers made. A considerable amount of extra Tribunal time had been taken up, and the Tribunal seriously considered making an award of expenses against the secondary complainers, but made no award of expenses to or by any party.

Michael Thomas McSherry

A complaint was made by the Council of the Law Society of Scotland against Michael Thomas McSherry, solicitor, Glasgow.

The Tribunal found the respondent guilty of professional misconduct in respect of his between 8 August and 26 November 2013 taking £150 and £200 respectively from a client without crediting those payments to his client account and requiring payment to be made to his personal bank account, in breach of rule B6.3.1 of the Practice Rules 2011, his between 31 October 2013 and 15 January 2014 failing to advise his client that the firm of Steen Bali McSherry had ceased to trade and his continuing to act on behalf of the client in his capacity as a solicitor when he was not the holder of a practising certificate, was not affiliated to any practising firm of solicitors and had no professional indemnity insurance cover, his between 30 November 2011 and 31 October 2013 consistently failing to comply with section B6 of the Solicitors (Scotland) Accounts, Accounts Certificate, Professional Practice and Guarantee Fund Rules 2011 regulating the financial management of the firm of Steen Bali McSherry, solicitors and in particular his breach of rules B6.3.1, B6.4, B6.7.1, B6.7.4, B6.8.1, B6.8.2, B6.13 and B6.15, and his failure to comply with the Money Laundering Regulations in breach of rule B6.23, his between 31 October 2013 and 16 April 2014 repeatedly delaying and failing entirely to cooperate with the Society in the exercise of its regulatory functions or to make suitable arrangements for the winding up of his firm, and his failure to respond to communications timeously or provide accurate accounts certificates on time or at all, or to produce accounting records and information to ensure an adequate standard of record keeping and demonstrate the true financial position of his firm following its cessation on 31 October 2013, contrary to rule B6.18.7. The Tribunal suspended the respondent for a period of four years.

The respondent breached numerous accounts and practice rules over a prolonged period despite repeated inspections, interviews at the Society and advice given by the Society. Given the financial and chaotic situation with the respondent’s firm at the time when the secondary complainer was asked to pay two sums of money directly into the respondent’s personal account, and given that he continued to act for the secondary complainer without advising him that he no longer had a practising certificate, these were sufficiently serious in themselves to amount to professional misconduct. The Tribunal was particularly concerned that the respondent, rather than realise that he was not coping and wind up his business, instead took on an assistant who did not have a practising certificate and started doing conveyancing work which was a more risky area of practice. It was also concerned to note that the respondent was given so many chances by the Society to rectify the situation and yet failed to do so. In the circumstances the Tribunal considered that suspension for a period of four years would be an appropriate penalty.
Regarding the secondary complainer’s claim for compensation, the finding of professional misconduct was financial and organisational in nature whereas the Tribunal was of the view that the major element of the loss and distress suffered by the secondary complainer related to the service element of the respondent’s conduct and accordingly would be more appropriately dealt with by the Scottish Legal Complaints Commission. The Tribunal however appreciated that this complainer had to be involved in the Tribunal proceedings and in these circumstances made an award of £150 for the inconvenience and distress caused.

Gerard Tierney

A complaint was made by the Council of the Law Society of Scotland against Gerard Tierney, formerly of G Tierney & Co, Auchinleck. The Tribunal found the respondent guilty of professional misconduct in relation to his (a) submitting criminal legal aid accounts to SLAB (Scottish Legal Aid Board) and accepting payment from SLAB when he knew or ought to have known that some of the contents were fictitious or at the very least inaccurate and overstated; (b) submitting civil advice and assistance or civil legal aid accounts to SLAB and receiving remuneration from another inter alia based on payment of said fees in relation to those accounts, when he knew or ought to have known they were inaccurate, overstated and not supported or supportable; (c) failure to obtain signed client mandates in relation to five cases; and (d) failure to ensure that properly completed mandates were held on file in relation to seven cases. The Tribunal ordered that the respondent’s name be struck off the Roll of Solicitors in Scotland.

It is a basic and underpinning principle of the profession that a solicitor must act honestly at all times and be trustworthy. The respondent’s conduct had at its core a clear element of dishonesty. He admitted that in 24 criminal legal aid accounts fictitious outcomes were created, allowing accounts to be submitted. Additionally, on seven occasions he claimed payment for fabricated or inaccurately described diets. In relation to the civil accounts, on 21 files he submitted accounts to SLAB which were not in the least supported by the content of the files. Separately, the failures in relation to the client mandates required in connection with online applications were themselves serious.

The Tribunal took the view that this misconduct, over a number of years, was at the very highest end of the scale. The conduct was clearly deliberate and designed to result in a financial gain to the respondent. His conduct was so serious and reprehensible as to be extremely damaging to the profession’s reputation. There had been little indication of any sign of remorse. The Tribunal concluded unanimously that the appropriate disposal was to strike the respondent’s name from the roll.  

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