Scottish Solicitors' Discipline Tribunal

An appeal was made under s 42ZA(9) of the Solicitors (Scotland) Act 1980 by Alan Conroy, Conroy McInnes Ltd, Glasgow against the determination by the Council of the Law Society of Scotland to uphold a complaint of unsatisfactory professional conduct made by Rajesh Hiremath (“the second respondent”). The appeal was defended by both respondents.

An identity fraudster pretending to be the second respondent instructed the appellant to sell the second respondent’s house. Following a complaint by the second respondent alleging a failure to carry out proper identity checks on the client and ensure that he was the owner of the property in question, the Society’s Professional Conduct Subcommittee (“PCSC”) made a finding of unsatisfactory professional conduct against the appellant.

There was an undisputed error of fact in the PCSC’s determination in relation to misidentification of the purchasing company as a building society. This was a finding for which there was no evidence. This error arose during the PCSC’s deliberations and parties were not able to address it. The Tribunal was not convinced that this error alone would have been sufficient for it to overturn the PCSC’s decision, had the rest of the reasoning been cogent. However, the PCSC had also made findings which were contradictory of the evidence, and had taken into account manifestly irrelevant considerations.

On reviewing the evidence, the appellant’s encounter with his client appeared to the Tribunal to be a perfectly normal conveyancing transaction. None of the “red flags” identified by the PCSC individually or when considered together would be particularly troubling to a competent and reputable solicitor. The appellant was taken in by a fraudster who was trying to deceive him. He could not be criticised for this in the circumstances of this case. He did not ignore or fail to do something he ought to have done. The bases for the PCSC’s criticism of the appellant’s conduct were not well founded. The Tribunal was not satisfied that the appellant was guilty of unsatisfactory professional conduct. It therefore quashed the determination, the accompanying censure and the direction that the appellant pay a fine and compensation.

A complaint was made by the Council of the Law Society of Scotland against Matthew David Cohen, solicitor, Brechin. The Tribunal found the respondent guilty of professional misconduct singly in respect of his breaches of rules B6.11.1 and B6.23, and in cumulo in respect of his delay in registering deeds, and his breaches of rules B6.3, B6.4.1, B6.5.1, B6.7.1 and B6.13, all of the Law Society of Scotland Practice Rules 2011.

The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that for an aggregate period of five years, any practising certificate held or issued to him shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer or successive employers as may be approved by the Council.

Solicitors must register deeds without delay. They must communicate effectively (rule B1.9). A solicitor must retain responsibility for the records of their firm. It is essential that books and records are properly kept and that the Society can ascertain the true financial position of the firm at any time. The public must have confidence that the profession will comply with the accounts rules and can be trusted with their money. There must not be a deficit on the client account (rule 6.3). Solicitors must rectify breaches promptly (rule B6.4). They must render fees (rule B6.5.1). Failure to do so demeans the trust the public places in the profession. Fees must be fair and reasonable (rules B6.5.1 and B1.11). Solicitors must keep proper accounting records (rule B6.7). They must return client balances once the matter is concluded (rule B6.11). They must comply with the anti-money laundering provisions (rule B6.23). They must apply customer due diligence measures. They must establish and maintain appropriate and risk sensitive policies and procedures. They must regularly train staff. Cashroom managers and money laundering and risk management partners must retain responsibility for the books and records, and for compliance with AML procedures including documenting compliance. It is essential that the public can have confidence that the profession can be trusted to comply with the rules. The Money Laundering Regulations exist to protect society against criminal acts. Documentation of AML procedures allows the solicitor to demonstrate compliance with the rules.

The Tribunal was satisfied that the respondent’s conduct represented a serious and reprehensible departure from the standards of competent and reputable solicitors. Deficiencies had been noted during a financial compliance inspection in 2015 and again in 2017, following the second of which he was suspended from practice. He had fallen far short of what was required of him in the management of his practice. Of most concern to the Tribunal were his failures to return client balances promptly and his breaches of the anti-money laundering provisions. Misconduct was established singly in relation to these breaches. The other failings were found to constitute misconduct in cumulo.

A complaint was made by the Council of the Law Society of Scotland against Michael McKeown, Callahan McKeown & Co Ltd, Renfrew. The Tribunal found the respondent guilty of professional misconduct in respect that he was, while within the confines of Glasgow Sheriff Court in a professional capacity, found in possession of a class B controlled drug in contravention of s 5(2) of the Misuse of Drugs Act 1971. The Tribunal censured the respondent.

This incident occurred at the start of the pandemic. The respondent had been on leave and was not expecting to attend court. He was called at very short notice in relation to a vulnerable young client in custody at a police station. The respondent attended court with the intention of gaining access to a computer system which would allow him to communicate with his client. He was stopped and searched by the police.

The Tribunal recognised that these were unusual and unfortunate circumstances, but considered that the respondent’s conduct would be regarded by competent and reputable solicitors as serious and reprehensible. Solicitors are not expected to behave as “paragons of virtue”, but they are expected to act with integrity both in their professional and private lives. The respondent was acting in a professional capacity when he entered a court building in possession of an illegal substance. The respondent was therefore guilty of professional misconduct. The Tribunal concluded that censure was appropriate in all the circumstances.