Scottish Solicitors' Discipline Tribunal: January 2023

Ian Gordon Davidson

A complaint was made by the Council of the Law Society of Scotland against Ian Gordon Davidson, solicitor, Dundee. The Tribunal found the respondent guilty of professional misconduct in respect that on the death of his father he:

(a) failed to inform The Royal Bank of Scotland (where the deceased held accounts which the respondent continued to operate) of the death;

(b) failed to disclose to the secondary complainer (his brother and co-executor) the existence of a standard security held by the deceased over a property owned by the respondent and his wife;

(c) failed to make the payments due to service a loan to the deceased for the respondent’s benefit;

(d) failed to disclose that the Aviva death benefit had been paid out;

(e) failed to obtemper an agreement in relation to the Aviva policy and misappropriated the policy proceeds;

(f) falsely stated that he was in correspondence with Aviva and the Financial Ombudsman Service;

(g) encashed National Savings Bonds contrary to his agreement with the secondary complainer;

(h) failed to disclose to the secondary complainer the value of the National Savings Bonds;

(i) failed to ensure that appropriate buildings insurance cover was in place for a property which formed part of the estate;

(j) failed to settle gas and electricity bills in relation to said property;

(k) failed to account for sums totalling £44,563.00 paid into accounts held in the joint names of his mother and the deceased over which he had control;

(l) acted inappropriately and in breach of rules B6.12.1 and B6.2.3 in relation to the Aviva policy proceeds;

(m) acted inappropriately and in breach of said rules in relation to a Tesco Bank transfer;

(n) induced Tesco Bank by fraud to write off a debt of £6,663.32;

(o) embezzled payments received from Tesco Bank;

(p) failed to disclose to the secondary complainer the existence of a Tesco Bank credit card account; and

(q) destroyed copies of correspondence and failed to maintain any file in order to conceal his own fraudulent actings.

The Tribunal ordered that the name of the respondent be struck of the roll of solicitors in Scotland and ordained him to pay £5,000 compensation to the secondary complainer.

Principles of honesty and integrity are fundamental to the profession. Members of the profession are in a very privileged position and members of the public must be able to trust that a solicitor will carry out his duties and obligations in an honest and trustworthy manner. Solicitors require to be persons of integrity. If the public is to have trust in the profession, solicitors must observe high standards of conduct. The need to have integrity applies equally to a solicitor’s private life as it does his professional conduct. 

The Tribunal rejected the submission that the respondent was not acting as a solicitor in this case. He had corresponded with Aviva and Tesco Bank on his employer’s headed notepaper. He had received funds into his employer’s client account. The secondary complainer had trusted him to deal with winding up the estate because the respondent was still a practising solicitor. However, even if the respondent was not so acting, members of the profession are required to maintain standards in relation to their private or commercial lives as well as in their professional practice. The nature and extent of the dishonesty in this case constituted a serious and reprehensible departure from the standards of competent and reputable solicitors. Accordingly, the Tribunal found him guilty of professional misconduct. Strike off was the only appropriate sanction.

Alan Niall Macpherson Mickel

A complaint was made by the Council of the Law Society of Scotland against Alan Niall Macpherson Mickel, solicitor, Glasgow. The Tribunal found the respondent guilty of professional misconduct in relation to his breaches of rules B1.2 (insofar as it related to a lack of integrity), B6.2.3, B6.3.1, B6.4.1, B6.7.1, B6.11.1 and B6.12.2 of the Law Society of Scotland Practice Rules 2011.

The Tribunal censured the respondent and directed that for an aggregate period of two years, any practising certificate held or issued to the respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to, and to being supervised by, such employer as may be approved by the Society.

The respondent, having been informed that sums due to the Scottish Legal Aid Board had been improperly taken as fees, failed to take action, or instruct others to take action, to remit the judicial expenses to SLAB. He failed to cooperate and communicate effectively with SLAB. He allowed his integrity to be called into question. The respondent knew that sums were due to SLAB when he received an email from the cashier. Despite the matter being drawn to his attention again later in the year, the respondent failed to correct matters or cooperate and communicate with SLAB. The respondent’s failure to act was reckless and lacked integrity. In failing to remit the sums due in breach of an express statutory obligation, and taking money to fees, a deficit was created on the client account. Public funds were therefore used for the firm’s benefit. The loss had to be covered by the Client Protection Fund. The respondent’s behaviour constituted a serious and reprehensible departure from the standards of competent and reputable solicitors. Accordingly, he was guilty of professional misconduct.

David Wilkie-Thorburn

A complaint was made by the Council of the Law Society of Scotland against David Wilkie-Thorburn, solicitor, Aberdeen. The Tribunal found the respondent guilty of professional misconduct in respect that he, by sending an electronic message which was menacing and threatening in nature and which resulted in a racially aggravated conviction under s 127(1)(a) of the Communication Act 2003, acted in contravention of rule B1.2 of the Practice Rules 2011; failed to maintain the standards of propriety expected of him as a member of the legal profession in his private life; breached the duty upon him to act with integrity; and acted in a way which brought the profession into disrepute.

The Tribunal suspended the respondent from practice for a period of two years.

It is well established that conduct that takes place in the private life of a member of the profession can amount to professional misconduct. Not all inappropriate, even criminal conduct, that occurs in a solicitor’s private life will do so. However, here the respondent had sent a menacing and intimidating message to a third party, a hairdresser in his husband’s salon, that specifically referenced his role as a senior prosecutor. This resulted in the recipient of the message being placed in a state of fear and alarm that she was at risk of being deported, and the subsequent conviction of the respondent. The Tribunal considered the conduct to be not only deplorable but shocking. The admitted conduct clearly fell below the standards to be expected of a competent and reputable solicitor and could only be described as serious and reprehensible, and serious enough that the appropriate sanction was a period of suspension.

Hugh Colin Somerville (s 42ZA appeal)

An appeal was made under s 42ZA(10) of the Solicitors (Scotland) Act 1980 by Wesley Mitchell against the determination by the Council of the Law Society of Scotland not to uphold a complaint of unsatisfactory professional conduct by the appellant against Hugh Colin Somerville, solicitor, Musselburgh (“the second respondent”). The appeal was defended by the first respondents. The second respondent did not enter the process. 

The appellant made several complaints about the second respondent. Those related to his involvement in the affairs of two elderly sisters (Ms A and Ms B). The appellant was a friend of these ladies and a beneficiary of their wills. The appellant was not himself a client of the second respondent. This was a “third party complaint”. The Tribunal was only concerned with two of those heads of complaint at the substantive appeal hearing.

The Tribunal was persuaded that there were shortcomings in the Professional Conduct Subcommittee’s reasoning in relation to the respondent’s conduct on 16 May 2012. The evidence supported a finding that his conduct was a departure from the standards of competent and reputable solicitors and therefore constituted unsatisfactory professional conduct. The committee had fundamentally erred in its approach to the case by taking account manifestly irrelevant considerations and had arrived at a decision no reasonable subcommittee could reach. 

A solicitor must act on his or her client’s instructions and act in their best interests. A solicitor should be satisfied when taking instructions that the client has capacity to give them. If there is any doubt, medical advice should be sought. The Tribunal was of the view that there were warning signs that Ms B may have been a vulnerable client. Therefore, the complaint about the second respondent’s conduct on 16 May 2012 was partially upheld to the extent that he had acted inappropriately when he attended at Ms B’s house and signed a new will for her by way of notarial execution. However, the Tribunal was not satisfied that the appeal in relation to the remaining elements of the complaint was made out.