Scottish Solicitors' Discipline Tribunal

Section 42ZA appeal: Allan J Nicoll

An appeal was made under s 42ZA(10) of the Solicitors (Scotland) Act 1980 by Colin N Howie, solicitor, Aberdeen against the determination by the Council of the Law Society of Scotland (the first respondent) dated 10 March 2016 in respect of a decision not to uphold certain complaints of unsatisfactory professional conduct against Alan J Nicoll, Laurie & Co Solicitors LLP, 17 Victoria Street, Aberdeen (the second respondent). The appeal was defended by both respondents, although the first respondent conceded a number of grounds of appeal.

The Tribunal found that the second respondent’s professional conduct had been unsatisfactory in various respects and that the first respondent’s subcommittee had erred when refusing to uphold those complaints made by the appellant. In particular, the second respondent acted as a solicitor for two parties whose interests conflicted. He agreed the terms of a loan between a company and its majority shareholders when he acted for the company. He also had a personal interest in the loan. While a majority shareholder himself, he acted for both the company and its majority shareholders in relation to the grant and registration of a standard security by the company in favour of the majority shareholders. His conduct breached the Practice Rules 2011 and was not of the standard which could reasonably be expected of a competent and reputable solicitor.
The Tribunal upheld 10 of the 14 grounds of appeal, quashed the corresponding determinations of the first respondent and made a determination upholding those heads of complaint. The Tribunal refused four of the 14 grounds of appeal and confirmed the corresponding determinations of the first respondent in respect of those heads of complaint.

Jane Elizabeth Steer

A complaint was made by the Council of the Law Society of Scotland against Jane Elizabeth Steer, Allan McDougall, 3 Coates Crescent, Edinburgh. The Tribunal found the respondent guilty of professional misconduct in respect of her failure to act with trust and personal integrity in connection with the preparation of an affidavit which she purported to notarise on 29 October 2012, submission to the court for lodging an affidavit which contained false or misleading information on 5 November 2012 and subsequent failure on 29 June 2014 to provide a full and candid explanation to the Society in connection with the preparation of the affidavit and its sending to the secondary complainer. The Tribunal censured the respondent.

The Tribunal considered that the respondent’s conduct clearly amounted to professional misconduct. The established proper practice for the swearing of an affidavit was clear. A completed document should be before the deponent and the notary, the deponent should then swear that the contents of the statement are true, and the deponent and the notary should immediately sign the document. This procedure was not followed on this occasion. The procedure existed to allow greater reliance to be placed on notarised documents. In this case the sheriff appeared to have relied on the document in question and this might have been to the detriment of the secondary complainer. The Tribunal considered that the respondent’s response to the Society at the outset of its investigation did not make clear that the affidavit had been prepared and sent to the secondary complainer for signature on the respondent’s express instructions. The Tribunal considered that her response was therefore lacking in candour and was in breach of a solicitor’s duty to act with trust and personal integrity at all times. It is the duty of a solicitor to uphold the higher standards of the profession, and where a solicitor acts as a notary that solicitor has a further duty to the court to ensure that their conduct is beyond reproach. The actings of the respondent on this particular occasion fell far below the required standard and in these circumstances a finding of professional misconduct was appropriate. The Tribunal was of the view that in the circumstances, the appropriate penalty was censure.