Scottish Solicitors' Discipline Tribunal: June 2023

Joseph Hann (s 42ZA appeal)

An appeal was made under s 42ZA(12) of the Solicitors (Scotland) Act 1980 by Reham El Menshawy against the direction made by the Council of the Law Society of Scotland dated 11 February 2021 in respect of the amount of compensation, £1,000, it had directed to be paid by Joseph Hann, solicitor, Annan (the second respondent) following a finding of unsatisfactory professional conduct by failing to supervise adequately the work carried out by a trainee at the firm. The appeal was defended only by the first respondents.  

Having heard submissions from the appellant and the fiscal for the first respondents, the Tribunal refused the appeal and confirmed the direction of the first respondents. The Tribunal could only consider the loss, inconvenience and distress resulting from the conduct in respect of which the complaint was upheld, which was a failure to respond to the Sheriff Appeal Court for further information in relation to an application for permission to appeal to the Court of Session. The Tribunal could not hold that by the conduct of the second respondent, the appellant had been deprived of a real or substantial chance of obtaining leave to appeal to the Court of Session when counsel’s advice was that no important point of principle arose. The amount of compensation awarded for inconvenience and distress was reasonable in the circumstances.

Sarah Duncan Lane or Stuart

A complaint was made by the Council of the Law Society of Scotland against Sarah Stuart, Ledingham Chalmers LLP, Aberdeen. The Tribunal found the respondent not guilty of professional misconduct and remitted the complaint to the Council in terms of s 53ZA of the Solicitors (Scotland) Act 1980.

The complainers alleged that the respondent was guilty of professional misconduct by accepting improper instruction to issue correspondence.

That correspondence contained the paragraph: “Accordingly, our clients would be grateful if you could simply confirm whether or not you are willing to agree to the Charity Proposal within 28 days of the date of this letter. The decision has to be unanimous. If it is not, our clients have indicated that their intention is to contact the relevant authorities in relation to the concerns as to certain financial irregularities raised in our letter of 2 July 2019. This will deal with the fraud issue one way or the other.”

Solicitors must be trustworthy and act honestly at all times so that their personal integrity is beyond question (rule B1.2). They must not accept improper instructions (rule B1.5). They must communicate effectively with their clients and others (rule B1.9).

The Tribunal considered the matter of professional misconduct carefully. Although the email had been drafted by another, the respondent had sent it out in her name. She was therefore responsible for it.

The Tribunal was satisfied that the respondent’s letter should not have included this paragraph. This was not the behaviour of a competent and reputable solicitor. The respondent is an experienced solicitor. Her decision to send the email was ill judged. She should have taken greater care. However, considering the context in which this email was sent, the Tribunal did not consider that the failing was a serious and reprehensible departure from the standards of competent and reputable solicitors.

While not condoning the respondent’s behaviour, the overall culpability was not high enough for her to be guilty of professional misconduct.

The Tribunal considered that the respondent might be guilty of unsatisfactory professional conduct, which is professional conduct not of the standard which could reasonably be expected of a competent and reputable solicitor, which does not comprise merely inadequate professional service but which does not amount to professional misconduct.

Accordingly, the Tribunal found the respondent not guilty of professional misconduct and remitted the case to the Society under s 53ZA.