Scottish Solicitors' Discipline Tribunal

A complaint was made by the Council of the Law Society of Scotland against Steven Archibald Murray, The MMFW Partnership, Glasgow. The Tribunal found the respondent guilty of professional misconduct, singly in respect that (a) between 1 January 2014 and 17 July 2015 he unduly delayed in obtaining confirmation in the estate of the late RW; (b) between 8 December 2015 and 12 July 2016 he unduly delayed and/or failed to implement timeously a mandate sent by the secondary complainer’s new agents seeking all papers and documents in relation to both the trust and the executry, despite repeated requests from those agents; and (c) he failed to comply with his responsibilities as client relations manager by failing to send a response to the secondary complainer in relation to her letter of complaint dated 10 February 2017; and in cumulo in respect that (a) between 1 January 2014 and 8 December 2015 he failed to exercise the appropriate level of skill required to deal with the administration of the said estate in that he incorrectly advised the secondary complainer that the late RW’s share of the trust capital should be excluded from the application for confirmation and thereafter submitted an application for confirmation excluding said capital, whereas a capital sum of approximately £90,000 should have been included thus bringing the whole value of the estate above the threshold for inheritance tax purposes; and (b) between 1 January 2014 and 8 December 2015, he failed to exercise the appropriate level of skill required to deal with the administration of the said estate in that he incorrectly paid the late RW’s share of the income from the trust to the secondary complainer’s aunt, whereas said share of the trust income should have been paid to the late RW’s children.

The Tribunal censured the respondent and fined him £1,000. The Tribunal accepted that there was some overlap with a previous complaint dealt with by the Tribunal in 2018. The respondent appeared to have taken significant steps to address the issues raised, had cooperated fully in the proceedings and had already made a significant payment to the secondary complainer. He had no other pending disciplinary matters. The Tribunal declined to award compensation to the secondary complainer in this case.

A complaint was made by the Council of the Law Society of Scotland against Leon Kondol, McBride Kondol & Co, Glasgow. The Tribunal found the respondent guilty of professional misconduct in respect that he provided to his client, and allowed him to retain, Crown witness statements and an independent forensic physician’s report, all containing highly sensitive information, contrary to rules B1.2 and B1.14.1 of the Society’s Practice Rules 2011 and articles 11 and 12 of the Code of Conduct for Criminal Work. The Tribunal censured the respondent and fined him £2,000.

The respondent was instructed in a solemn criminal matter by a client (the secondary complainer). His client was charged with, and eventually convicted of, various sexual offences committed against members of his family and one other individual. During the period of instruction, the respondent provided to the secondary complainer a number of police witness statements and a defence expert report. These documents contained highly sensitive material which included personal information relating to the witnesses and details of the alleged criminal conduct. The respondent’s conduct lacked integrity and constituted professional misconduct. The Tribunal declined to make an award of compensation to the respondent’s client, the secondary complainer.

An appeal was made under s 42ZA(10) of the Solicitors (Scotland) Act 1980 by Laura Hudson, Camden South, New South Wales 2570, Australia against the determination by the Council of the Law Society of Scotland dated 11 February 2021 not to uphold a complaint of unsatisfactory professional conduct made by the appellant against Stephen Kennedy, McIntyre & Co, Fort William (the second respondent). The appeal was defended only by the first respondents.

The appeal related to two heads of complaint. In relation to the first head, the Tribunal quashed the determination of the first respondents and upheld the complaint. In relation to the second head of complaint, the Tribunal confirmed the determination of the first respondents. The Tribunal directed the second respondent to pay compensation of £500 to the appellant.

The first head of complaint related to a breach of confidentiality to a prospective client in terms of rule B1.6 of the 2011 Practice Rules. The Tribunal was concerned that at no stage did the Professional Conduct Subcommittee refer to the appellant as a prospective client. Furthermore, the only discussion in its decision referring to confidentiality related to the question of the confidentiality or security of the firm’s portal. The Tribunal concluded that, on a plain reading of the decision, it was impossible to draw an inference that the committee had considered the duty of confidentiality owed to the appellant as a prospective client either under rule B1.6 or at common law. The Tribunal was satisfied that this amounted to an error of fact and law and entitled it to reconsider the complaint. The Tribunal was satisfied that the facts disclosed that the second respondent had breached his duty of confidentiality to the appellant by writing to the subject of her concerns without her instructions to do so. The Tribunal considered that the conduct had the potential to damage the reputation of the profession. The conduct would not reasonably be expected of a competent and reputable solicitor. The test for unsatisfactory conduct was met. The Tribunal therefore quashed the determination of the Professional Conduct Subcommittee in relation to this head of complaint and upheld the appeal.

The second head of complaint related to the standard of communication of the second respondent. The Tribunal found no basis to interfere with the Professional Conduct Subcommittee’s decision.