Scottish Solicitors' Discipline Tribunal

A complaint was made by the Council of the Law Society of Scotland against William Murnin, solicitor, Greenock. The Tribunal found the respondent guilty of professional misconduct in respect that he (1) knowingly issued fee notes and took funds from client ledgers which were unjustified and excessive, and improperly overcharged clients up to a total in excess of £200,000; (2) created a deficit on the client account up to an amount in excess of £200,000; (3) failed to render fee notes; and (4) submitted inaccurate accounts certificates up to and including 30 April 2010.

The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland.

The respondent improperly overcharged a number of clients in a total in excess of £200,000. As a consequence of the overcharging, the respondent created a deficit on the client account. He failed to render fee notes to seven clients. He authorised and signed inaccurate accounts certificates. His conduct was dishonest. The principles of honesty and integrity are fundamental to the profession. Members of the profession are in a very privileged position and members of the public must be able to trust that solicitors will carry out their duties and obligations in an honest and trustworthy manner. Dishonesty with clients’ money is one of the most serious matters that concerns the Tribunal. Solicitors belong to a profession which requires high standards of ethical conduct. Members of the public must have confidence that solicitors are trustworthy and honest and that their integrity is beyond question. Solicitors must comply with the accounts rules. They must render fees to clients. Failure to do so demeans the trust the public places in the profession. 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.

A complaint was made by the Council of the Law Society of Scotland against William Criggie, 137 (2nd Floor) Sauchiehall Street, Glasgow. The Tribunal found the respondent guilty of professional misconduct individually and in cumulo in respect of his breaches of (a) rules B6.7.1 and B6.7.2, (b) rule B6.20.1, (c) rule B1.7.1, (d) rules B6.23.1 and B6.23.2, (e) rule B6.11, (f) rule B6.18.7, (g) rule B6.7.3, (h) rule B6.5.1, (i) rule B6.18.7 and (j) rules B1.9.1 and B1.9.2, all of the Law Society of Scotland Practice Rules 2011.

The Tribunal censured the respondent and directed that any practising certificate held or issued to him should be subject to such restriction as will limit him to acting as a qualified assistant to and being supervised by such employers as may be approved by the Council of the Law Society of Scotland for an aggregate period of two years. The Tribunal also directed the respondent to pay £1,000 by way of compensation to the secondary complainer.

During the period libelled in the complaint, the respondent had been a partner/director of his former firm/company and had also acted as money laundering reporting officer, cashroom manager, complaints partner and client relations partner. The respondent failed to keep properly written up accounting records in relation to a trust. His firm borrowed money from the trust in circumstances which contravened the Society’s rules and in a conflict of interest situation. He failed to comply with anti-money laundering rules. He failed or delayed unduly in disbursing historic client balances. He failed to cooperate with Society inspections. He failed to keep properly written up accounting records to show the true financial position of the practice unit. He failed to render three fee notes. He failed or delayed raising an action and failed to communicate with a client. The Tribunal was satisfied that the respondent’s repeated failures over a significant period of time represented a serious and reprehensible departure from the standards of competent and reputable solicitors. Accordingly, he was guilty of professional misconduct.

A complaint was made by the Council of the Law Society of Scotland against Paul Anthony Garrett. The Tribunal found the respondent guilty of professional misconduct in respect that he appeared before sheriffs at Paisley and Hamilton and dishonestly held himself out to be a solicitor when he was aware that he did not have a practising certificate and was therefore unqualified, in breach of practice rules B1.2, B1.13.1 and B1.14.1, and failed to communicate with his professional body in breach of rule B1.2.

The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland.

It is essential that solicitors act honestly and with integrity. The respondent’s conduct in appearing in court twice without a practising certificate was dishonest. He misled other regulated persons and the court. The court system works because of the trust placed in representatives. To appear without a practising certificate was a gross breach of that trust and deceived the court. On one of the occasions on which he appeared, the respondent conducted a summary trial, a matter which was likely to have been of considerable importance to his client who placed his trust in the respondent. The clients were placed at risk. They were unprotected by professional indemnity insurance or the Master Policy. The respondent compounded these failings by failing to cooperate with his regulator in its investigation. This behaviour was 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 Sverre Nils Aaen, formerly of Aaen Peach Ltd, 81 St Vincent Street, Glasgow. The Tribunal was not satisfied that all the facts in the complaint, which concerned an allegedly misleading fee quotation for a conveyancing transaction, had been proved beyond reasonable doubt. Having determined the facts which had been established, it considered that these did not amount to professional misconduct. The Tribunal found the respondent not guilty of professional misconduct. However, it recognised that the standard of proof in relation to allegations of unsatisfactory professional conduct is that of balance of probabilities. In these circumstances, the Tribunal considered that the respondent might be guilty of unsatisfactory professional conduct and remitted the complaint to the Society under s 53ZA of the Solicitors (Scotland) Act 1980.

A complaint was made by the Council of the Law Society of Scotland against Quinton Muir, D & J Dunlop, 2 Barns Street, Ayr. The Tribunal found the respondent guilty of professional misconduct, singly in respect that (i) in delaying and acting on the secondary complainer’s instruction to raise and proceed with a divorce action within the period October 2013 to October 2017, the respondent failed in his obligation to proceed with the instruction within a reasonable time; (ii) in failing to communicate with the secondary complainer in the period January 2015 to February 2017, the respondent failed to communicate effectively with her; and in cumulo in respect that (i) in failing to instruct sheriff officers/tracing agents to attempt to trace the husband in 2014 and thereafter, the respondent failed to act in the best interests of the secondary complainer; (ii) in failing to advise the secondary complainer that the instance had fallen in October 2014 and he could not serve the action, the respondent failed to act in her best interests; and (iii) in failing to serve the divorce action by exhibition on the walls of court and allowing the instance to fall, the respondent failed to act in the best interests of the secondary complainer.

The Tribunal censured the respondent and fined him £10,000.

The main overriding averment of misconduct was the one which related to the delay between October 2013 and October 2017 in acting on the secondary complainer’s instruction to raise and proceed with a divorce action. A solicitor is expected to carry out instructions adequately and competently within a reasonable time. The Tribunal asked itself whether it was reasonable that in a four year period the respondent had failed effectively to commence a divorce action. In considering this question, the Tribunal took the view that the other averments of misconduct were all steps within this broad encompassing averment. Due to periods of inaction on the part of the respondent, a failure to seek instructions and a failure properly to identify that the instance of this writ had fallen, the respondent had failed to raise and proceed with a divorce action for a period of four years. The Tribunal determined that this period of time, taking into account all of the contributory factors, amounted to a departure from the standard to be expected of a competent and reputable solicitor that could only be classed as serious and reprehensible. This in itself amounted to professional misconduct. The respondent’s failure to communicate with the secondary complainer was also professional misconduct in itself. The Tribunal concluded that four other averments of misconduct were more appropriately considered as misconduct in cumulo. Two other averments of misconduct were not found to have been established.

A complaint was made by the Council of the Law Society of Scotland against Graham Robert Bryson, Bryson’s Legal Services, 1534 Maryhill Road, Glasgow. The complainers alleged that the respondent was guilty of professional misconduct in a number of respects. It was said that he failed to act in the best interests of his clients and communicate effectively between 29 January 1998 and 1 January 2014, by failing to notify trust share registrars that the secondary complainer had been assumed as a trustee. It was claimed that the respondent failed to act in the best interests of his clients and communicate effectively by failing between 12 October 2012 and 1 January 2014 to notify trust share registrars of the death of Ms B. It was alleged that the respondent failed to act in the best interests of his clients and failed to act with integrity by failing to submit tax returns to HMRC in respect of the trust for the years ending April 2009, 2010, 2012 and 2013 and failed to deal with penalty notices, and brought, or was likely to bring, the profession into disrepute. It was said that the respondent had failed and/or unduly delayed between 12 January 2012 and 1 January 2014 to undertake work in the administration of the Ms B estate to enable confirmation to be obtained and in so doing failed to act with integrity and acted in a way which brought, or was likely to bring, the profession into disrepute.

The Tribunal considered that the respondent’s conduct represented a departure from the standards of conduct to be expected of competent and reputable solicitors. However, it did not consider that the departure was serious and reprehensible. The Tribunal had regard to its functions of protecting the public and upholding the reputation of the profession. The respondent’s conduct did not involve a lack of integrity or create a risk to the public or bring the reputation of the profession as a whole into disrepute. However, it might constitute unsatisfactory professional conduct, which is defined as professional conduct which is not of the standard which could reasonably be expected of a competent and reputable solicitor but which does not amount to professional misconduct and which does not comprise merely inadequate professional service. Accordingly, the Tribunal found the respondent not guilty of professional misconduct and remitted the case to the Society under s 53ZA of the Solicitors (Scotland) Act 1980. The secondary complainer’s claim for compensation would be a matter for the complainers to deal with as part of the remitted complaint.