Scottish Solicitors' Discipline Tribunal

A complaint was made by the Council of the Law Society of Scotland against Michael Thompson of Thompson Family Law, Glasgow. The Tribunal found the respondent not guilty of professional misconduct and remitted the complaint to the Council of the Law Society of Scotland in terms of s 53ZA of the Solicitors (Scotland) Act 1980.

There were two allegations of misconduct. The first was that the respondent had unduly delayed in providing a file to another solicitor. The file was requested on an urgent basis on 26, 27 and 30 April and 1 May 2018. The Respondent did not respond or provide any of the file until 1 May 2018. The second allegation was that the respondent had failed or unduly delayed in providing the client’s new solicitor with portions of the file which were not included within the material sent on 1 May 2018 and were not received despite further requests from the new solicitor on 14 and 30 May and 31 July 2018.

There were shortcomings in the way the mandate was handled. The respondent admitted these. He did not attach the whole file to his email of 1 May 2018. The disc which was later provided was also incomplete and appeared to have “bounced” between the two firms without the respondent being aware of the problem. When considering the whole circumstances and the respondent’s degree of culpability, the Tribunal did not consider that the conduct constituted a serious and reprehensible departure from the standards of competent and reputable solicitors; however, it considered that the respondent might be guilty of unsatisfactory professional conduct, which is 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. He could have done more to oversee that the implementation of the mandate was successful and to apply his mind to the reasons why his firm was receiving repeated emails from the new solicitors. Accordingly, the Tribunal found the respondent not guilty of professional misconduct and remitted the case to the Society under s 53ZA. The secondary complainer’s claim for compensation would be dealt with by the Professional Conduct Subcommittee when the case was remitted.

A complaint was made by the Council of the Law Society of Scotland against David Ewan McNeish, formerly of Optima Legal (now Alston Law) and now of DWF LLP, Edinburgh. The Tribunal found the respondent guilty of professional misconduct, singly in respect that (a) in the period between 7 January 2015 and 3 February 2015 he failed to act in the best interests of Dr A by liaising directly with her, and (b) in the same period he failed to ensure that he had the authority of Dr A for his actings in the conveyancing transaction; and in cumulo that (c) in the same period he failed to communicate effectively with Dr A while she was a client of the firm.

The Tribunal censured the respondent and directed him to pay £1,250 by way of compensation to the secondary complainer.

The respondent communicated only with Dr A’s then husband Mr A, and ultimately took title in Mr A’s sole name to a property they were buying, as Dr A, who did not have a right of permanent residence in the UK, was not accepted as a mortgage borrower. The Tribunal was satisfied that the respondent’s conduct amounted to a serious and reprehensible departure from the standards of competent and reputable solicitors. The respondent had failed to recognise that the individuals concerned were separate clients with separate interests. Instructions can be taken through one of two clients. However, a solicitor must ensure that they have the authority of all clients to take instructions in that way and that this continues throughout the transaction, particularly when there are material changes to the nature of that transaction.