Scottish Solicitors' Discipline Tribunal

A complaint was made by the Council of the Law Society of Scotland against Stuart McDonald Bain, Andersonbain LLP, Aberdeen. The Tribunal found the respondent guilty of professional misconduct in respect of his failure to disclose to the secondary complainer’s solicitor that there were outstanding works in relation to the roof, fabric and pointing of the property, knowing that the information which his client had given him and which was contained in the missives was false, calling into question the respondent’s integrity and breaching rule B1.14.1 of the 2011 Practice Rules, and failing to withdraw from acting when he became aware that his client had given him false information and provided instructions not to disclose the correct position to the secondary complainer’s solicitor.

The Tribunal censured the respondent.

The respondent concluded missives on behalf of a client and then discovered that property repairs were required and had been instructed by the proprietors of neighbouring properties. He therefore knew that the information from his client was false. He should have ascertained the true position with the architectural consultant, discussed the problem with the client and made it clear that he would have to disclose the issue to the secondary complainer’s agents or withdraw from acting. Instead, he continued to deal with the case, prioritising the duty of confidentiality to the client over his obligations as a solicitor and attorney. This was a serious misjudgment which called his integrity into question and breached his duties to other regulated persons. His actions constituted a serious and reprehensible departure from the standards of competent and reputable solicitors and therefore he was guilty of professional misconduct.

A complaint was made by the Council of the Law Society of Scotland against Glenn James Fraser of Fraser & Co Criminal Defence Ltd, Livingston. The Tribunal found the respondent not guilty of professional misconduct. The Tribunal did not consider that the conduct established met the test for unsatisfactory professional conduct and therefore declined to remit the complaint to the Council in terms of s 53ZA of the Solicitors (Scotland) Act 1980.

The core elements of the conduct were not in dispute. The respondent was a salaried partner of Central Court Lawyers. He resigned from that firm on 6 May 2014 by an email of that date and a letter dated 5 May 2014 left in the office. He removed a number of files from the office without prior discussion with either the other partners or any clients. He did not make an accurate list of the files he had taken. The Society alleged that the respondent was guilty of professional misconduct by removing files from the office without prior notice or discussion with his partners (rules B1.2 and B1.14.1), without prior authority or consent of the client (rules B1.4, B1.9 and B3), and in some cases where he was neither the nominated solicitor for legal aid purposes nor the responsible partner.The Tribunal found that at the time of his departure from Central Court Lawyers, it was the respondent’s honest belief that had he given notice of his departure to his former partners they would have deprived him of access to files. The respondent was nominated solicitor in all bar seven of the files that he removed. His primary reason for taking these files was to allow him as nominated solicitor to provide the standard of service he had previously provided to his clients. It was the respondent’s intention to copy these files and then return them to Central Court Lawyers. The respondent’s behaviour was not a serious and reprehensible departure from the standards of competent and reputable solicitors and therefore he was not guilty of professional misconduct. The Tribunal declined to remit the matter to the Society, considering that the test for unsatisfactory professional conduct was not met.

A complaint was made by the Council of the Law Society of Scotland against Harold William Joseph of Harold W Joseph, Glasgow. The Tribunal found the respondent guilty of professional misconduct in respect of breaches between October 2012 and November 2016 of rules B1.2, B1.9.1, B6.3.1, B6.4.1, B6.7.1, B6.7.3, B6.12.1 and B6.13.2 of the 2011 Practice Rules.

The Tribunal censured the respondent and fined him £1,000.

Solicitors must act with personal integrity and communicate effectively. The client account must not be in deficit. Solicitors must remedy any breaches promptly. They must keep proper accounting records of dealings with clients’ funds. They ought to keep proper accounting records for the practice unit. Special responsibilities rest on cashroom managers. They must ensure compliance with the rules and submit accurate accounts certificates. The accounts rules exist to protect the public. It is important that the public have confidence that the profession will abide by the rules. The respondent continually failed in his duties; his behaviour was a serious and reprehensible departure from the standards of competent and reputable solicitors and therefore constituted professional misconduct. The Tribunal was particularly concerned that the respondent signed accounts certificates which he did not know were accurate. Accounts certificates are not a formality. They must be completed properly so that the Society can use the information to monitor compliance and assess risk.

A complaint was made by the Council of the Law Society of Scotland against Daniel Anthony McGinn, Motherwell. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect that he (a) failed to undertake any work on behalf of the secondary complainer in relation to his divorce, having received the sum of £500 in fees; (b) failed to provide the secondary complainer with a fee note, invoice or receipt in respect of the sum of £500 paid by him into the respondent’s firm bank account; (c) failed to refund the said sum of £500 having advised the secondary complainer that he would do so; and (d) failed to advise the secondary complainer that he was ceasing to act on his behalf.

The Tribunal suspended the respondent from practice for a period of eight years, and ordered him to pay the secondary complainer £1,000 compensation.

The principle that a solicitor should be honest is fundamental to the profession. The public must be able to trust that a solicitor will carry out his duties and obligations in an honest and trustworthy manner. The respondent failed in this fundamental duty and also breached other practice rules. The Tribunal was satisfied that in cumulo, this conduct represented a serious and reprehensible departure from the standards of competent and reputable solicitors and therefore constituted professional misconduct.

A complaint was made by the Council of the Law Society of Scotland against Gary Robertson Pirrie, Alex Mitchell & Sons, Musselburgh. The Tribunal found the respondent guilty of professional misconduct in respect of his failure to communicate with the secondary complainer between June 2009 and April 2016, his delay in making over a pecuniary legacy, and his failure to respond to the secondary complainer’s letter of 29 April 2016, the secondary complainer’s letter of 25 November 2016 and the letter from W & AS Bruce of 3 August 2016.

The Tribunal censured the respondent and fined him £5,000.

Solicitors must communicate effectively. They must complete work adequately and completely within a reasonable time. The Tribunal has repeatedly held that failure to complete executries in a reasonable time and to communicate effectively can constitute professional misconduct. It noted the significant delay in this case, the poor communication with the secondary complainer and her solicitors and fact that the matter was still not resolved. In these circumstances it was satisfied that the respondent’s failures represented a serious and reprehensible departure from the standards of competent and reputable solicitors and therefore professional misconduct.