Scottish Solicitors' Discipline Tribuna

A complaint was made by the Council of the Law Society of Scotland against Desmond William Donoghue, solicitor, Edinburgh. The Tribunal found the respondent guilty of professional misconduct in relation to various breaches 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 two 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. The Tribunal awarded the secondary complainer compensation of £1,988.40.

Following the conclusion of a transaction, the respondent held funds for the secondary complainer. A sum was due to Revenue Scotland for land and buildings transaction tax. The respondent failed to pay Revenue Scotland. He was both the designated cashroom manager and the person who dealt with the transaction. Adherence to proper cashroom procedures would have alerted the respondent to the position. The secondary complainer had to pay a penalty and the LBTT himself and did not receive his money back from the respondent for some months. The respondent failed to properly register title and a standard security. He failed to cooperate with the Society. This impedes the Council in its statutory obligation to investigate complaints. He did not communicate effectively with the secondary complainer, who repeatedly tried to contact him about the problem. The respondent did not adequately and completely conclude the work within a reasonable time or exercise the level of skill appropriate to the matter.

A complaint was made by the Council of the Law Society of Scotland against Craig Robert Harvie, Eden Legal Ltd, Perth. The Tribunal found the respondent guilty of professional misconduct in relation to various breaches of the Law Society of Scotland Practice Rules 2011.

The Tribunal censured the respondent and fined him £5,000. The secondary complainers did not claim compensation.

The case concerned the respondent acting for Bill Johnston and Andrew Johnston who were in a partnership. The respondent took instructions from Andrew to significantly reduce Bill’s interests in the partnership, drafted a variation of the partnership agreement without taking instructions from Bill, and met with Bill when it was plain he was a vulnerable client without a family member present. The respondent failed to properly consider the vulnerable witness guidance and the effect of the alteration to the partnership agreement, which was to reduce Bill’s interest to the benefit of Andrew from whom he took instructions. He did not provide advice in writing when that would have been appropriate in the circumstances. This was in breach of rules B1.2, B1.4.1, B1.7.1, B1.5.1 and B1.9.1, all of the Law Society of Scotland Practice Rules 2011.

A complaint was made by the Council of the Law Society of Scotland against Michael Gerard Kilkerr, solicitor, Stranraer. The Tribunal found the respondent guilty of professional misconduct in respect of breach of rules B1.7, B1.9.1 and B2.1.4, all of the Law Society of Scotland Practice Rules 2011.

The Tribunal censured the respondent and fined him £1,500. It awarded compensation of £1,000 to the secondary complainer, JC.

The respondent acted in a conflict of interest situation when he acted for both JC and his partner. He failed to explain in writing to JC the full extent of the loss of rights in his property which would follow on him relinquishing a liferent and signing a disposition. Not every communication has to take place in writing. However, the circumstances of this case were such that the key points ought to have been communicated by letter to JC. He required a detailed letter setting out the consequences of the transfer and the fact he would no longer have a liferent over the property. The conflict of interests between the clients was very clear. Both clients, and particularly JC, needed independent and separate advice about the consequences of the transfer of title and renunciation of the liferent. Proceeding to act for both clients in these circumstances was a serious and reprehensible departure from the standards of competent and reputable solicitors.