Scottish Solicitors' Discipline Tribunal

John Christopher Bartlett

A complaint was made by the Council of the Law Society of Scotland against John Christopher Bartlett, solicitor, Dingwall. The Tribunal found the respondent guilty of professional misconduct in respect of his breaches of (a) rule B6.4.1, (b) rule B6.7.1, (c) rules B6.7.3 and B6.7.4, (d) rule B6.23, (e) rule B6.13.2 and (f) rules B6.15 and B1.2, all of the Law Society of Scotland Practice Rules 2011, said findings of professional misconduct (a)-(f) being in cumulo and finding of professional misconduct (f) being found individually. The Tribunal censured the respondent and restricted his practising certificate for an aggregate period of two years.

The respondent accepted that he had failed to rectify breaches of the accounts rules and that some of these had been drawn to his attention following a 2011 inspection. He had failed to comply with proper anti-money laundering practices. His accounting records were not up to date and were not up to standard. He had not chosen to use appropriate accounting methods or software. He had not maintained proper anti-money laundering procedures, policies and provided appropriate staff training. He had not acted properly as cashroom manager. He had submitted false and inaccurate accounts certificates to the Society.

The Tribunal was satisfied that the respondent’s many failures over a period of five years were a serious and reprehensible departure from the standards of competent and reputable solicitors, particularly when he had failed to address the matters drawn to his attention in 2011. Accordingly, he was guilty of professional misconduct. The Tribunal was satisfied that the conduct in cumulo amounted to professional misconduct. However, the submission of nine false and inaccurate accounts certificates was capable of amounting to professional misconduct on its own. Accounts certificates are one of the means by which the Society monitors compliance with the rules and risk to client money. The Society is entitled to rely on accounts certificates as showing the matters which have been identified and the measures taken to deal with them. Failure to record the breaches on the accounts certificates called the respondent’s integrity into question. He knew about the issues raised in the 2011 inspection and other problems. His completion of the certificates without comment, knowing he had not resolved all issues, despite his efforts, demonstrated a lack of integrity.

Duncan McKinnon Burd

A complaint was made by the Council of the Law Society of Scotland against Duncan McKinnon Burd, Anderson MacArthur Ltd, Somerled Square, Portree, Isle of Skye. The Tribunal found the respondent guilty of professional misconduct in respect that he (1) submitted accounts to the Scottish Legal Aid Board which included outlays which were unrestricted for alcoholic beverages and food for others, in breach of rule B1.2 of the Law Society of Scotland Practice Rules, article 3 of the Criminal Code of Conduct, reg 8(1)(c) of the Criminal Fees Regulations 1989 and SLAB’s Code of Practice for Legal Assistance (April 1998); and (2) failed to communicate effectively with SLAB in breach of rule B1.9.1 of the Law Society of Scotland Practice Rules and failed to cooperate with SLAB in breach of s 3.7.1 of SLAB’s Code of Practice for Legal Assistance (April 1998). The Tribunal censured the respondent and fined him £5,000.

The respondent fell short of the standards of competent and reputable solicitors to a serious and reprehensible extent when he included alcoholic beverages in his account and when his claim against the legal aid fund included the costs of food purchased for other people. SLAB had pointed out to the respondent in August 2012 and he subsequently agreed in correspondence that charging for alcohol was not appropriate. The respondent, nevertheless, continued to include charges for alcohol in the accounts that he submitted to SLAB. Counsel for the respondent accepted that the respondent would occasionally buy food for others. These expenses were not properly recoverable. The respondent had been reckless in submitting claims for alcohol and food for others and expecting SLAB to find them and abate them without making the true situation plain to them. The respondent had failed, on occasion, to provide SLAB with sufficient information to allow them to make a proper determination. On repeated occasions, the respondent certified to the best of his knowledge and belief that the items charged in the account were accurate and represented a true and complete record of all the work done. The respondent lacked integrity when making this declaration as he knew that he had submitted expenses for alcohol which he had already accepted could not be charged, and for food for other people.

The respondent failed to communicate effectively with SLAB and failed to co-operate with them. The respondent corresponded with SLAB in terms that were not transparent or straightforward. His choice of language was intemperate. He was evasive in answering legitimate queries posed to him by SLAB staff. Despite the background of the deteriorating relationship between the respondent and SLAB, the respondent’s lack of communication and co-operation was not acceptable.

Gordon Dangerfield

A complaint was made by the Council of the Law Society of Scotland against Gordon Dangerfield, Archer Coyle Solicitors, Glasgow. The Tribunal found the respondent not guilty of professional misconduct. The Tribunal 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.

The first averment of misconduct related to correspondence sent by the respondent. According to the complainers, the correspondence contained grave allegations against another solicitor which amounted to an insulting, intemperate and disparaging attack on another solicitor as they were untrue. However, the Tribunal did not consider that the content of the correspondence was sufficient to meet the test for professional misconduct or that the language used was intemperate, insulting and disparaging. The respondent’s assertions were factually correct. Taking into account the averments of duty, the Tribunal did not consider that the respondent’s conduct in this correspondence represented a serious and reprehensible departure from the standards of competent and reputable solicitors.

The second averment of misconduct related to the respondent’s conduct in court on two occasions. It was alleged that he made unfounded allegations which were unjustified in fact and law against another solicitor’s character in writing, and in court when he asserted that she was in contempt of court. However, the Tribunal did not consider that the respondent’s conduct represented a serious and reprehensible departure from the standards of competent and reputable solicitors.

There will be occasions where agents must be free to make submissions on unpalatable matters such as contempt of court against other practitioners. If an agent is incorrect in his/her assessment of the situation, they ought not to be subject to disciplinary proceedings. This might have a chilling effect on the ability of court practitioners to do their best for clients and seek justice for them. In the present case, the respondent was most likely wrong in law regarding contempt. However, this did not make the matter of disciplinary concern. The Tribunal accepted that there were limits to freedom of speech which had to be balanced against the requirement for court practitioners to act appropriately and in a manner of mutual trust and confidence with other solicitors. There would be circumstances where the conduct was such that disciplinary action would be required. However, the latitude had to be protected, and the Tribunal was concerned that a finding of professional misconduct in the circumstances of this case might limit the freedom of court practitioners.

The Tribunal found it disappointing to have to deal with a case of this nature. The matter ought to have been resolved long before contempt of court or defamation were mentioned and certainly well in advance of a complaint to the Scottish Legal Complaints Commission. This was a standoff between two lawyers about a trivial incident which ought to have been swiftly sorted out between the parties themselves, without recourse to the Tribunal.

John James Rankin Hodge

A complaint was made by the Council of the Law Society of Scotland against John James Rankin Hodge, Wallace Hodge & Co Ltd, Ayr. The Tribunal found the respondent guilty of professional misconduct in respect that (a) he failed to write to the secondary complainer to advise her that legal consequences might arise from her signing a discharge of a standard security granted by her late father in favour of her and her siblings, and that she should seek independent legal advice prior to signing the document; (b) he failed to act with integrity in that he advised the secondary complainer that the other executors and residuary beneficiaries had agreed to pay her a one-eighth share of the proceeds of sale of the house in question, but then made payment of the said sums conditional on the secondary complainer taking no further action in respect of the circumstances surrounding her discharge of the standard security; (c) he failed to act with integrity in respect that he made payment of the sums due to the secondary complainer conditional upon her withdrawing the complaint which she had made to the SLCC regarding the respondent, thus delaying or hindering the advancement of the executry; and (d) he placed himself in a conflict of interest situation.

The Tribunal censured the respondent, fined him £6,000 and ordained him to pay compensation of £2,500 to the secondary complainer.

The respondent breached the practice rules. He fell short of the ethical standards of his profession. He prioritised his interests over those of the clients, creating a conflict of interest. He could not provide independent and impartial advice when his own personal interests were involved. This was a deliberate and repeated strategy which demonstrated a lack of integrity.