Scottish Solicitors' Discipline Tribunal

A complaint was made by the Council of the Law Society of Scotland against John Charles Nason Craxton, Dumbarton. The Tribunal found the respondent guilty of professional misconduct (1) singly, in respect that he (a) acted in breach of his common law obligation not to facilitate fraud and in doing so acted in a dishonest manner, and (b) in two transactions, acted in breach of his common law duty to act with the utmost propriety to his lender clients, withheld information about fraud, that he was acting for both the seller and purchaser, that he failed to carry out his obligations under the CML Handbook and in particular he had not informed them that funds were being returned to the control of the borrowers who were in fact a front for Edwin McLaren (who was subsequently convicted of an extensive course of fraud in relation to the properties); and (2) in cumulo with each other, that he acted in contravention of rules 3 and 5 of the Solicitors (Scotland) Practice Rules 1986, rules 2, 5(a) and 5(e) of the Code of Conduct 2002, rules 1, 3, 4, 6 and 9 of the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008, regs 7, 8, 9, 11 and 14 of the Money Laundering Regulations 2007, and s 330 of the Proceeds of Crime Act 2002.

The respondent’s name already having been removed from the Roll of Solicitors in Scotland at his request in terms of s 9 of the Solicitors (Scotland) Act 1980, the Tribunal prohibited the restoration of the respondent’s name to the roll.

It was admitted by the respondent that he facilitated Edwin McLaren’s fraud. He discussed with Mr McLaren the scheme of buying distressed sellers’ properties in early 2008. He accepted instructions from Mr McLaren in the knowledge of his plan. He admitted that Edwin McLaren was the driving and controlling force of all instructions he received and that the purchasers were nominees. At no stage did he meet any of the sellers or purchasers. In all of the transactions, the dispositions with covering correspondence were taken to the sellers by an employee of the estate agency run by Edwin McLaren. In the transactions where the respondent represented only the seller, he contacted Edwin McLaren to confirm when the sellers received the net free proceeds. In two of the transactions, the respondent acted for the purchasers and their lenders. He admitted being aware that the purchasers were nominees of Edwin McLaren. He was aware that part of the loan funds would be ultimately paid on to Edwin McLaren.

The Tribunal was satisfied that the admitted facts demonstrated that the respondent had breached his common law obligation not to facilitate fraud, and in doing so he had acted in a dishonest manner. The admitted facts in transactions 1 and 2 established that the respondent was in breach of his obligation to act with the utmost propriety when dealing with the lenders. He had withheld information about the fraud from them, including that he was acting for both the seller and purchaser, that he had failed to carry out his obligations under the CML Handbook, that part of the loan funds was ultimately destined to be paid to Edwin McLaren, and that the purchasers were nominees for McLaren. The Tribunal was also satisfied that in the course of facilitating this fraud, the respondent had acted in contravention of the other practice rules averred.

The Tribunal was extremely concerned about the safety of the public and the reputation of the profession. The admitted facts and misconduct demonstrated that the respondent was not a fit and proper person to be a solicitor. The respondent should not be allowed to have his name restored to the roll in future and so the Tribunal considered that an order in terms of s 53(2)(aa) of the 1980 Act was appropriate.

An appeal was made under s 42ZA(10) of the Solicitors (Scotland) Act 1980 by Rosalyn MacDonald against the determination by the Council of the Law Society of Scotland in respect of a decision not to uphold a complaint of unsatisfactory professional conduct made against Hilary A B Macandrew, Grant Smith Law Practice, Turriff (the second respondent). The appeal was defended by the first respondents.

The appeal related to six heads of complaint. The second respondent had represented the appellant in relation to family law matters. The appellant’s complaints alleged failures by the second respondent to obtain information about financial assets, failures to lodge documents with the court, charging for work which was not carried out, misleading the appellant regarding the expertise of an advocate and failures to provide terms of business to the appellant. Having carefully considered matters, the Tribunal was of the view the substance of these complaints was not made out and that a competent and reputable solicitor could have acted in the same way as the second respondent. The first respondents’ subcommittee was entitled to take the view that it did. Therefore, the tribunal confirmed the first respondents’ determination in respect of the complaints.

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