Scottish Solicitors' Discipline Tribunal

Charles Thomas Norbet Brien

A complaint was made by the Council of the Law Society of Scotland against Charles Thomas Norbert Brien, solicitor, Edinburgh. The Tribunal found the respondent guilty of professional misconduct individually in respect of his appearance at Hamilton Sheriff Court on 2 December 2014 (a) without instructions from the defenders for whom he purported to appear, (b) in circumstances in which he was not entitled to practise at all, having neither employment nor professional indemnity insurance cover, and (c) in circumstances in which he failed to advise the court of his status; and in cumulo in respect of (1) his failure to advise company 2 that a proof had been fixed at Hamilton Sheriff Court for 2 December 2014; (2) his appearance at Hamilton Sheriff Court on 2 December 2014 (a) without instructions from the defenders for whom he purported to appear, (b) in circumstances in which he was not entitled to practise at all, having neither employment nor professional indemnity insurance cover, and (c) in circumstances in which he failed to advise the court of his status; (3) his unconscionable delay in advising company 2, until 24 October 2014, that a proof diet had been assigned for 6 November 2014 at Glasgow Sheriff Court, despite having been made aware of this on 19 September 2014; (4) his allowing decree to pass against his clients on 6 November 2014 without the instructions of his clients; (5) despite the respondent agreeing with the solicitors acting on behalf of company 4 on 20 February 2014, that company 2 would pay their client the sum of £15,000 plus VAT, a total of £18,000, plus expenses of £2,500, he failed to advise his client of the position in relation to expenses, and erroneously advised company 2 to pay the amount of £18,000 on 6 March 2014; and (6) his failure to advise company 2 that a decree for the sum of £2,789.05, being the sum of £2,500 plus interest and expenses, had been awarded against them at Glasgow Sheriff Court on 4 April 2014, so that they did not become aware of this until a charge for payment was served on them on or around 21 May 2014, and as a result became liable for further expenses in relation to the winding up petition.

The Tribunal censured the respondent.

The Tribunal was satisfied that the respondent’s behaviour was serious and reprehensible and met the test for professional misconduct, albeit at the lower end of the scale of professional misconduct. The Tribunal considered that the appearance at Hamilton Sheriff Court on 2 December 2014 constituted professional misconduct in and of itself. The Tribunal was of the view that all averments remaining for its consideration, including the incident on 2 December 2014, constituted professional misconduct in cumulo. As respects penalty, the Tribunal had regard to the fact that during the time the misconduct occurred, the respondent’s firm was facing an uncertain future and was eventually taken over, morale was low and the respondent was concerned about his job security. He was also suffering from depression and coping with bereavements and caring responsibilities. He had retired and had not renewed his practising certificate.

Appeal under s 42ZA: William E Renfrew

An appeal was made under s 42ZA(10) of the Solicitors (Scotland) Act 1980 by Alistair K Hood, Bishopbriggs, against the determination made by the Council of the Law Society of Scotland (the first respondent) dated 29 May 2014 not to uphold a complaint of unsatisfactory professional conduct in relation to heads of complaint 1 and 3 against William E Renfrew, solicitor of W Renfrew & Co Ltd, Glasgow (the second respondent, and the appellant’s separated wife’s solicitor). The Tribunal confirmed the determination of the Society in respect of heads of complaint 1 and 3 and found the appellant liable in the expenses of the first respondent and the Tribunal.

The second respondent did not enter the appeal process. There was no dispute about the facts and the Tribunal had to decide whether the determination made by the Society’s subcommittee was a decision which a reasonable subcommittee would have made. Head of complaint 1 related to whether or not the second respondent had authority to market a property. The Tribunal was satisfied that the subcommittee had taken the correct approach and applied the correct test in making its decision that correspondence between solicitors, taken as a whole, provided authority to market the property. In respect of head of complaint 3, the Tribunal considered that it was not unreasonable for the subcommittee to reach the conclusion that in all the circumstances, including the short period that the property was marketed before it was withdrawn from the market, a single failure to issue a terms of business letter did not amount to unsatisfactory professional conduct.

The Tribunal decision was made on 12 February 2015. It was appealed to the Court of Session on 30 April 2015. The court’s decision was issued on 7 March 2017. The appeal was refused.

Appeal under s 42A: A & R Robertson & Black

An appeal was brought under s 42A of the Solicitors (Scotland) Act 1980 by A & R Robertson & Black WS and John Gray Solicitors, Bank Street, Blairgowrie, against a finding made by the Council of the Law Society of Scotland in respect of a finding of inadequate professional service. The decision of the Tribunal of 20 December 2011 was appealed to the Court of Session. In its decision of 19 April 2013, the Court of Session quashed the finding of inadequate professional service insofar as it was based on overcharging of fees and remitted the case to the Tribunal for reconsideration in the light of a new taxation. Following a fresh taxation, the Tribunal considered the auditor’s report and submissions by both parties.

The Tribunal found that there was no inadequate professional service in respect of charging of fees in relation to the appellants’ actings. This decision excluded the charging to the client of the law accountant’s fee without proper consent, which the Tribunal had previously decided did constitute IPS and this decision was confirmed by the Court of Session. The Tribunal noted the auditor’s remarks that taxing 27% or more off any account of fees is very common indeed. The figure taxed off by the auditor of Glasgow Sheriff Court was in fact 16.4%. The Tribunal determined that taxing off 16.4% from the fees was not evidence of excessive fee charging in the particular circumstances of this lengthy and complicated case. This finding was specific to the facts and circumstances of this particular case and it should not be inferred that the Tribunal supports a proposition that a taxing off of 16.4% will never constitute inadequate professional service. The Tribunal was advised that the parties had entered into a minute of agreement with regard to repayment of fees and compensation and that the claim for compensation was withdrawn. The Tribunal allowed the claim for compensation to be withdrawn and made no order with regard to repayment of fees or compensation.