Scottish Solicitors' Discipline Tribunal: August 2022

An appeal was made under s 42ZA(10) of the Solicitors (Scotland) Act 1980 by Grant Maclean, solicitor, Berrymans Lace Mawer, Glasgow against the determination by the Council of the Law Society of Scotland in respect of a decision upholding a complaint of unsatisfactory professional conduct by the second respondent, Samantha Clark. The appeal was conceded by the first respondents. The second respondent did not enter the appeal process.  

The Tribunal considered that failure to have all relevant papers before the Professional Conduct Subcommittee was a fundamental error which led to it arriving at a decision which no reasonable subcommittee could reach. Although there was some disagreement between the parties about the number of missing pages, natural justice and fairness dictated that all documents submitted by parties ought to have been available first to the reporter and then the subcommittee. The appeal was properly conceded on this basis by the first respondents.  

The Tribunal agreed with parties that the subcommittee’s determinations finding unsatisfactory professional conduct in respect of the three heads of complaint ought to be quashed. It accepted the explanation made on the appellant’s behalf that he did not refuse to provide a time and line account, merely queried why that was necessary in the circumstances (issue 5). Failure for a short period to provide a copy of the complaints procedure was not sufficient on its own to constitute unsatisfactory professional conduct, particularly when the process had been explained at the start of the solicitor-client relationship and the second respondent was in communication with the appellant, who was the person who dealt with the complaints for the firm (issue 6). It was not unsatisfactory professional conduct to advise a client or former client that an outlay for taxation must be paid upfront (subject to the ultimate discretion of the auditor to allocate the fee at the conclusion of the taxation) (issue 16).

Having upheld the appeal and quashed the determination of the first respondents, the Tribunal also quashed the censure accompanying the determination and the directions which were based on the determination (fine and compensation). 

A complaint was made by the Council of the Law Society of Scotland against Fiona McKinnon, solicitor, McKinnon & Co, Glasgow. The Tribunal found the respondent guilty of professional misconduct singly and in cumulo in respect that she (a) failed to act in the best interests of MC and failed over a period of 12 years to progress her personal injury claim; (b) failed to communicate effectively with MC between March 2005 and November 2017 in relation to the progress of her personal injury claim; (c) failed to communicate effectively with her former partner Alan Conroy in that she failed or unduly delayed for several months in providing him with letters notifying a claim against his firm in respect of the respondent’s negligence in dealing with a personal injury case; (d) failed or unduly delayed for a period in excess of 10 months in providing to Alan Conroy the file of MW, to enable him to investigate a complaint by MW; (e) failed or unduly delayed in implementing a mandate from the solicitor representing LG for a period in excess of two years; (f) failed or unduly delayed to respond promptly and efficiently to correspondence and statutory notices received from the SLCC and its solicitor in respect of its regulatory function; and (g) failed or unduly delayed to respond promptly and efficiently to correspondence and statutory notices received from the Council in respect of its regulatory function in relation to three complaints.

The Tribunal censured the respondent and directed that for an aggregate period of two years with effect from 12 April 2022, any practising certificate held or issued to her shall be subject to such restriction as will limit her to acting as a qualified assistant to such employer as may be approved by the Council of the Society or its Practising Certificate Subcommittee. The Tribunal ordered the respondent to pay compensation of £3,000 to MC and £5,000 to Alan Conroy.

The respondent’s conduct represented a serious and reprehensible departure from the standards of competent and reputable solicitors. Failure to progress a straightforward personal injury claim for 12 years was unconscionable. Throughout that whole period, MC repeatedly attempted to contact the respondent seeking updates on progress and the respondent failed to communicate with her. The respondent failed to provide two letters to her former partner about a potential negligence claim. This prejudiced her partner’s ability to resolve the matter. She failed to provide him with files for 10 months despite repeated requests and assurances by her that she would deliver them. This prevented her partner from dealing with MW’s complaint. MW died before the matter was resolved. The respondent failed to implement a mandate for two years in LG’s case. She had no grounds to exercise a lien. Failure to implement a mandate hampered the new solicitor, which was prejudicial to the profession and its standing in the eyes of the public as well as being detrimental to the client. 

The Tribunal has repeatedly held that failure to obtemper a mandate can constitute professional misconduct. The SLCC and the Society were obliged to make enquiries into the complaints. The respondent’s attitude towards these regulators was appalling. She failed to provide any explanations. She failed to provide files. Her repeated failures took place over many years. Both regulatory bodies gave her many opportunities to respond but she chose to ignore them. This was completely unacceptable.

A complaint was made by the Council of the Law Society of Scotland against Andrew Paterson Penman, solicitor, Hawick. The Tribunal found the respondent guilty of professional misconduct singly and in cumulo in respect that he acted dishonestly when he advised a client he had taken action when he knew he had not, he misled clients, he took fees significantly in excess of subsequently audited fees, he failed to render fees, he failed to comply with the accounts rules, he failed to communicate effectively with his clients and others, he failed to act in the best interests of clients, and he failed to carry out instructions.

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

Solicitors must be trustworthy and act honestly at all times so that their personal integrity is beyond question.  They must not behave in a way which is fraudulent or deceitful (rule B1.2 of the Law Society of Scotland Practice Rules 2011). The respondent’s repeated lies to a client over nine months were an egregious breach of this fundamental rule. Solicitors should not mislead their clients (rule B1.2). The fees they charge must be fair and reasonable in all the circumstances (rule B1.11). They must comply with the accounts rules (rule B6). They must communicate effectively (rule B1.9). They must act in the best interests of their clients (rule B1.4). They must only accept instructions where the matter can be carried out adequately and completely within a reasonable time (rule B1.10). 

The respondent’s conduct was likely to endanger the public and harm the reputation of the profession. The Tribunal was satisfied that his conduct represented a serious and reprehensible departure from the standards of competent and reputable solicitors. He was therefore guilty of professional misconduct. Any sanction other than strike off would be insufficient to mark the seriousness of the conduct, protect the public and maintain the reputation of the profession. The Tribunal therefore ordered that the name of the respondent be struck off the roll of solicitors in Scotland.