Scottish Solicitors' Discipline Tribunal

An appeal was made under s 42ZA(10) of the Solicitors (Scotland) Act 1980 by Robert Kidd against the determination by the Council of the Law Society of Scotland dated 9 January 2020 not to uphold a complaint of unsatisfactory professional conduct by the appellant, a party in a high value share purchase transaction, against Scott Allan, solicitor, c/o Shepherd & Wedderburn LLP, Aberdeen (the second respondent). The appeal was defended by both respondents.  

The Tribunal upheld the appeal, quashed the determination of the first respondents, and made a determination upholding one head of complaint against the second respondent.  

The Tribunal considered there was clear evidence that the second respondent was aware at least to some extent of his colleague’s improper activity and involvement on behalf of another party to the transaction. The second respondent was aware that his colleague was continuing to act for that party. Therefore, the second respondent failed to act in the appellant’s best interests between approximately November 2008 and November 2009 as, despite being aware that his colleague was providing advice to another party to the transaction, he did not inform the appellant. The second respondent failed to take appropriate steps to address the conflict of interest situation. At a subsequent hearing the appellant confirmed that no compensation was sought through the Tribunal proceedings.

A complaint was made by the Council of the Law Society of Scotland against Iain Alexander Leslie, Leslie & Co SSC, Edinburgh. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his contraventions of regs 7, 8, 14 and 19 of the Money Laundering Regulations 2007 and rules B6.7.1(c), B6.13.2 and B6.23 of the 2011 Practice Rules. The Tribunal censured the respondent. 

Four files presented significant issues in relation to money laundering procedures. It did not appear to the Tribunal that this type of transaction was unusual for the respondent. The Tribunal was particularly concerned by the steps taken by the respondent in one case to apparently avoid having to carry out money laundering checks on funds coming from China. The Money Laundering Regulations exist to protect society against criminal acts. Failure to comply with the regulations demeans the trust the public can place in the profession. Having regard to the whole circumstances of this case, the Tribunal was satisfied that the respondent’s conduct was both serious and reprehensible. Given the close connection between each of the averments of misconduct, the Tribunal considered it appropriate that the finding was made on a cumulo basis.

A complaint was made by the Council of the Law Society of Scotland against Theresa Mary McWilliams, Trainor Alston Ltd, Coatbridge. The Tribunal found the respondent guilty of professional misconduct in respect that she (a) failed or unduly delayed, for a period of 10 months, to implement a mandate, and (b) failed to communicate effectively with Brodies Solicitors. The Tribunal censured the respondent. 

The Tribunal noted that failure to implement a mandate breaches the Society’s guidance. It also breaches rules B1.9.1 and B1.14.1. Solicitors must communicate effectively and act with other solicitors in a manner of mutual trust and confidence. Failure to implement a mandate is a breach of a solicitor’s obligations. It hampers the new solicitor instructed in the matter. It inconveniences the client. It is prejudicial to the legal profession and its reputation and can cause harm to the public. The Tribunal was satisfied that the respondent was guilty of professional misconduct. However, the misconduct was at the lower end of the scale. The respondent had shown remorse and changed her practice. There had been no repetition of the conduct and there was no risk to the public. A censure was therefore sufficient sanction.

The Tribunal found that the secondary complainer had been directly affected by the respondent’s misconduct and considered it was appropriate to award compensation. It ordained the respondent to pay £650 compensation to the secondary complainer.

A complaint was made by the Council of the Law Society of Scotland against Graeme Bruce Murray, Graeme Murray & Co, Aberdeen. The Tribunal found the respondent guilty of professional misconduct in respect that he failed to communicate with Faculty Services Ltd on behalf of counsel, failed to respond to correspondence from Faculty Services Ltd and failed to make payment of the fee notes due to counsel.

The Tribunal censured the respondent and restricted his practising certificate for an aggregate period of two years.

On instructing counsel the respondent accepted a personal responsibility for counsel’s fees. On four occasions he neglected his professional duty in this regard and failed to communicate effectively with Faculty Services Ltd. The respondent’s conduct was serious and reprehensible and constituted professional misconduct. 

The Tribunal censured the respondent and directed that for a period of two years, any practising certificate held or issued to the respondent be subject to such restriction as will limit him to acting as a qualified assistant to such employer as may be approved by the Society. The Tribunal made no award of compensation to the secondary complainer.

Publicity was deferred in this case. The Tribunal decided on 3 August 2021 that the decision could be published.

A complaint was made by the Council of the Law Society of Scotland against Louise Elizabeth Sutherland, solicitor, Milltimber. The Tribunal found the respondent guilty of professional misconduct singly and in cumulo in respect that she (a) failed to act in a trustworthy and honest manner where her actings were both fraudulent and deceitful; (b) inappropriately drew fees from the client account which were not justified and accordingly overcharged clients; (c) rendered fees for which there was no justification; (d) in respect of seven instances, knowingly and intentionally made entries where the narratives were misleading and masked the true financial position of the clients’ account, the financial position of the firm and the audit trail; (e) rendered 120 fee notes where no work had been done to justify any fee; (f) did not keep properly written account records to reflect the true position with the client account; (g) dishonestly put through fees she knew she was not entitled to, in order to use the client account money for other purposes; (h) as cashroom manager or designated cashroom partner, did not appropriately discharge her responsibilities; and (i) caused or knowingly permitted the practice unit not to comply with the provisions of rule 6 of the Practice Rules 2011.

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

The respondent admitted a dishonest course of conduct which had included the firm using clients’ funds to keep the firm afloat. Solicitors are in a privileged position in holding clients’ funds. The accounts rules exist to protect the interests of the client and ensure complete transparency, and security of these funds. 

The respondent admitted deliberate overcharging, creation of fictitious fee notes, and the creation of misleading client ledger narratives. This conduct was serious and reprehensible. The respondent was guilty of professional misconduct. Having regard to the protection of the public and the damage to the reputation of the profession, the Tribunal considered that strike off was the only possible disposal. 

Publicity was deferred until the conclusion of associated proceedings against the respondent or intimation that none were to be brought. The Tribunal agreed on 3 August 2021 that the decision in this case could be published.

An appeal was made under s 42ZA(10) of the Solicitors (Scotland) Act 1980 by Campbell Thomas against the determination by the Council of the Law Society of Scotland not to uphold a complaint of unsatisfactory professional conduct made against Neil F McPherson, solicitor, Kilmarnock (the second respondent). The appeal was defended by both respondents.

There were two grounds of complaint relevant to the appeal. The first head of complaint was that the second respondent had acted in a threatening manner towards the appellant, a journalist, by saying in a loud and menacing voice, “You better be careful Campbell, you better be very careful.” The second head of complaint was that the second respondent arranged for the exit of his client from a non-public facing door of the court and inappropriately stated to members of the press that, “He wouldn’t have done it for anyone else but Campbell Thomas”, which the appellant had taken as a personal attack on himself. 

The Tribunal analysed the Professional Conduct Subcommittee’s determination and, applying the test in Hood, Petitioner [2017] CSIH 21, confirmed its decision not to uphold a complaint of unsatisfactory professional conduct against the second respondent. Publicity would be given to the decision. The Tribunal found the appellant liable in the expenses of both respondents and the Tribunal, but refused sanction for counsel.