Scottish Solicitors' Discipline Tribunal

A complaint was made by the Council of the Law Society of Scotland against Bruce Gregor De Wert, Georgesons, Wick. The Tribunal found the respondent not guilty of professional misconduct. The Tribunal further did not consider that the conduct established might meet the test for unsatisfactory professional conduct and therefore declined to remit the complaint to the Society in terms of s 53ZA of the Solicitors (Scotland) Act 1980.

Allegations of misconduct were raised against the respondent regarding his conduct in relation to the drafting, execution and registration of a power of attorney for a client. The Tribunal heard evidence that, superficially, the client could give the impression she had capacity. Having carefully considered the evidence led and the agreed facts, the Tribunal did not consider that there was sufficient evidence to prove the complainers’ case beyond reasonable doubt.

There are certain standards of conduct to be expected of competent and reputable solicitors and a departure from these standards which would be regarded by competent and reputable solicitors as serious and reprehensible may properly be categorised as professional misconduct. It is necessary to consider all the circumstances and the degree of the respondent’s culpability. The Tribunal was not persuaded that there were sufficient warning signs in this case such as to render the respondent’s decision to draft and register the power of attorney, professional misconduct.

A complaint was made by the Council of the Law Society of Scotland against Ian William Donaldson, solicitor, Dunfermline. The Tribunal found the respondent guilty of professional misconduct in respect of his failures (a) to act with trust and personal integrity, (b) to communicate effectively, (c) to act with competence, diligence and appropriate skill, and (d) to act in a manner consistent with persons having mutual trust and confidence in each other.

The Tribunal censured the respondent and fined him £2,000.

The respondent repeatedly and unequivocally asserted to the first and third secondary complainers and the agent for the first secondary complainer that he had instructed agents to deal with the title to a property on the Isle of Man when he had not done so. He unreasonably delayed in dealing with the transfer of title to that property. He therefore breached rules B1.2, B1.9.1, B1.10 and B1.14 of the 2011 Practice Rules. The Tribunal accepted that the delay in dealing with the property was due to various factors. However, it was the respondent’s responsibility to ensure the executry was completed within a reasonable time and his failure to advance matters contributed to a significant degree to the delay.

It is essential that solicitors act with trust and personal integrity. They should communicate effectively. They should act with competence, diligence and skill. They should also act in a manner consistent with persons having mutual trust and confidence in each other. Failure to do so brings the profession into disrepute. The respondent failed in these duties and these failures were a serious and reprehensible departure from the standards of competent and reputable solicitors. Therefore, the respondent was guilty of professional misconduct.

A complaint was made by the Council of the Law Society of Scotland against Nigel William Frew Ford, Fords Daly Legal Ltd, Kirkcaldy. The Tribunal found the respondent guilty of professional misconduct in respect that he (a) acted contrary to the CML Handbook; (b) contravened rule 6(1) of the Solicitors (Scotland) Accounts etc Rules 2001; (c) failed to act diligently and with the utmost propriety in respect of dealings with his lender client while acting for both lender and purchaser; (d) failed to act in the best interests of his lender clients; and (e) failed to communicate effectively with his lender clients and knowingly misled them by signing certificates of title when he had not complied with his obligations to each lender prior to doing so.

The Tribunal censured the respondent and fined him £2,500.

The materiality of the information not passed on to the lenders must have been obvious to the respondent. The Society has made plain to the members of the profession the importance of complying with the obligations under the CML Handbook. The Handbook was introduced in order to help to prevent mortgage fraud. Even though the solicitor may not himself be a party to such a fraud, if he fails to obtemper the obligations set out within the Handbook he may unwittingly facilitate the execution of such fraud. In all the circumstances, given the amount and nature of the information which was not disclosed to the lenders, the Tribunal had no hesitation in holding that the standard of conduct of the respondent fell within the test for professional misconduct.

A complaint was made by the Council of the Law Society of Scotland against David George Hogg, solicitor, Kirkintilloch. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his failure to act with appropriate diligence and delaying in the administration, winding up and distribution of two estates from 24 July 2001 and 24 February 2003 respectively until the appointment of a judicial factor on 5 October 2012, and his failure to keep the beneficiaries of the estates adequately and timeously informed of developments.

The Tribunal censured the respondent.

It is the duty of an executor to deal diligently with an estate and to bring it to completion within a reasonable time. There is also a legal obligation to account to the beneficiaries of the estate. The delays of 11 and nine years in dealing with the executries were unacceptable. In an executry where the solicitor is an executor, there is a professional duty to correspond with beneficiaries and keep them reasonably informed. The Tribunal found the respondent not guilty of further averments of professional misconduct.

A complaint was made by the Council of the Law Society of Scotland against Lorraine Ann Kelly, solicitor, Glasgow. The Tribunal found the respondent guilty of professional misconduct in respect that (a) on 27 May 2015, she wrote to the residuary beneficiary in an executry, stating that both executors had approved the final accounts for the administration of the said estate, and enclosed a cheque in the sum of £202,650.99 being the residue of the estate due to the said beneficiary, knowing that said executors had not approved the said final accounts and that a sum of £5,033.33 had been retained by the respondent’s firm and incorporated practice, said letter thereby serving to mislead the said residuary beneficiary and being in breach of rule B1.2 of the Law Society of Scotland Practice Rules 2011; and (b) on 27 May 2015, she wrote to the said residuary beneficiary in the said executry, without taking reasonable steps to establish whether the terms of said letter were accurate, or whether there was any lawful basis for the retention of the sum of £5,033.33 and therefore in breach of rule B1.2 of the Law Society of Scotland Practice Rules 2011.

The Tribunal censured the respondent.

It is a basic and fundamental principle that a solicitor requires to be a person of integrity. If the public is to have trust in the profession, solicitors must observe high standards of conduct. Duties to employers, partners or fellow directors must be balanced with a solicitor’s own professional responsibilities. There is a critical relationship of trust between solicitor and beneficiary, as there is between solicitor and client. Misleading the residuary beneficiary was a serious and reprehensible departure from the standards of competent and reputable solicitors and therefore the respondent was guilty of professional misconduct.

A complaint was made by the Council of the Law Society of Scotland against John Bunny McGeechan, c/o JBM Solicitors Ltd, Airdrie. The Tribunal found the respondent guilty of professional misconduct in respect that he repeatedly resorted to undignified and intemperate language in correspondence with a firm of solicitors and a firm of accountants; made allegations in correspondence with the solicitors and accountants, of dishonesty, having no basis in fact or evidence to support them; having been put on notice by the solicitors of the correct position, continued to make such unfounded allegations; and made similar unfounded allegations in court proceedings where he had no evidence to support them and had been put on notice of the contrary position.

The Tribunal censured the respondent and fined him £3,000.

The Tribunal was satisfied that the respondent’s conduct in making repeated allegations of dishonesty and fraud, without proper evidential basis, to fellow regulated professionals and others, and repeating these in court pleadings which required even more care, was a serious and reprehensible departure from the standards of competent and reputable solicitors. The Tribunal noted the number of letters involved, which were sent to different parties. It had regard to the strength of the language used. It took into account that in the face of information to the contrary, the respondent did not investigate further or alter his position. The rider present in some of the letters did not negate the accusations made in those letters. The respondent was therefore guilty of professional misconduct.

A complaint was made by the Council of the Law Society of Scotland against Brian Travers, solicitor, Coatbridge. The Tribunal found the respondent guilty of professional misconduct in respect of his (1) failing to lodge defences by 16 September 2014 in time for the hearing on a date unknown to the secondary complainer, despite telling the secondary complainer he had it in hand; (2) failing to lodge a notice of opposition to the pursuer’s motion for summary decree, which he should have lodged by a date unknown to the secondary complainer; (3) failing to arrange for representation on the secondary complainer’s behalf at the options hearing held on 17 November 2014, which consequently led to decree being granted against the secondary complainer, who did not discover that decree had been granted until he had forced a meeting with the firm to find out what was happening; (4) failing to properly and fully advise the secondary complainer that decree by default had been granted against the secondary complainer; (5) failing to advise the secondary complainer that an appeal to the sheriff principal had been refused on a date unknown to the secondary complainer; (6) failing to advise the secondary complainer of his right to appeal the sheriff principal’s decision to the Inner House; and (7) failing generally to communicate properly with the secondary complainer and failing to advise him of significant developments.

The Tribunal suspended the respondent from practice for a period of nine years.

Solicitors must act in their clients’ best interests. They must communicate effectively and advise them of significant developments in their case. They must only act in matters where they are competent to do so. They must only accept instructions where the matter can be carried out adequately and completely within a reasonable time, exercising the level of skill appropriate to the matter. The respondent failed in these duties. Having considered the whole circumstances and the respondent’s degree of culpability, the Tribunal was of the view that the respondent’s conduct represented a serious and reprehensible departure from the standards of conduct to be expected of competent and reputable solicitors. This was sufficient to satisfy the test for professional misconduct.

Visit the Scottish Solicitors Discipline Tribunal online: www.ssdt.org.uk