Scottish Solicitors' Discipline Tribunal: November 2023

Margaret Anne Horsley

A complaint was made by the Council of the Law Society of Scotland against Margaret Anne Horsley, solicitor, Edinburgh. The Tribunal found the respondent not guilty of professional misconduct and remitted the complaint in relation to one averment of misconduct to the Council in terms of s 53ZA of the Solicitors (Scotland) Act 1980. That averment alleged that the respondent had acted dishonestly, with a lack of integrity, and deceitfully, when utilising her father’s power of attorney, in breach of rules B1.2 and B1.14.1.

It was found that the respondent, acting with her mother and without consulting her father, had disposed of a car registered in her father’s name in part exchange for a new car registered in her own name. There was no doubt that the respondent failed in her duties as attorney. However, her failings appeared to be due to lack of experience and competence in this area of the law, and the difficult situation which arose within the family, rather than as a result of dishonesty or deceitfulness. The Tribunal accepted that the respondent was attempting to do her best for both her parents. Having regard to all the circumstances, the Tribunal did not consider that her behaviour represented a serious and reprehensible departure from the standards of competent and reputable solicitors. She was therefore not guilty of professional misconduct in relation to that averment. However, the Tribunal was of the view that the respondent’s behaviour might constitute unsatisfactory professional conduct, which is professional conduct not of the standard which could reasonably be expected of a competent and reputable solicitor but which does not amount to professional misconduct and does not comprise merely inadequate professional service. Accordingly, the Tribunal remitted the case to the Society under s 53ZA.

The second averment of misconduct was that the respondent, in her capacity as executor nominate on the estate of her late mother, applied for confirmation on 26 February 2018 knowing that the application was inaccurate, false and misleading thereby acting dishonestly, with a lack of integrity and deceitfully, all in breach of rules B1.2 and B1.14.1. The complainers did not demonstrate why the items in question should have been included in the application for confirmation, or any effect from failing to add them.

Therefore, the Tribunal found the respondent not guilty of professional misconduct in relation to the second averment. The Tribunal was of the view that just as the factual situation was incapable of supporting a finding of professional misconduct, similarly, it could not provide a basis for unsatisfactory professional conduct, and declined to remit this averment to the Society under s 53ZA.

David Johnson

A complaint was made by the Council of the Law Society of Scotland against David Johnson, Johnson Family & Property Law Ltd, Edinburgh. The Tribunal found the respondent not guilty of professional misconduct in relation to the first averment of misconduct relating to conflict of interest and remitted the complaint to the Council under s 53ZA of the Solicitors (Scotland) Act 1980. The Tribunal found the respondent guilty of professional misconduct in relation to the second averment of professional misconduct, which related to mandates. The Tribunal censured the respondent.

The respondent, in his capacity as supervising solicitor of a trainee, acted on behalf of a married couple on 25 February 2020 in relation to the preparation and execution of a deed where their individual interests were in conflict. Before she was invited to sign the evacuation, Mrs S should have been given the opportunity to take separate legal advice. However, the conflict issue was a very narrow one, relating only to conduct on that date. On the information available to the trainee and therefore the respondent, the couple had come to a joint decision that evacuation of the survivorship and the creation of a discretionary trust was appropriate for them in their circumstances. When considering the whole context in which the conduct occurred, the Tribunal did not consider that the respondent’s failure to intervene was a serious and reprehensible departure from the standards of competent and reputable solicitors, although it might represent a departure from the standards of conduct to be expected of competent and reputable solicitors. Therefore, the Tribunal found the respondent not guilty of professional misconduct in relation to the conflict issue and remitted that complaint to the Society under s 53ZA.

The respondent failed to implement timeously the terms of a mandate issued on 21 May 2020, the documents requested not being made available until 20 July 2020. Failure to implement a mandate breaches the Society’s guidance. It hampers the new solicitor instructed by the client. It inconveniences the client. It is prejudicial to the reputation of the profession and can cause harm to the public. Although the period in which the respondent had delayed in dealing with the mandate was not as long as is sometimes seen in misconduct cases, the Tribunal was satisfied that a two-month delay was a serious and reprehensible departure from the standards of competent and reputable solicitors. The respondent was therefore guilty of professional misconduct in relation to this aspect of the complaint.

Alan Robert Kennedy Watt

A complaint was made by the Council of the Law Society of Scotland against Alan Robert Kennedy Watt, Watt Law, Cumbernauld. 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.

In response to a letter of complaint from a former client, the respondent said: “I must warn you that any time I spend dealing with this matter I will raise an action for recovery of any losses which I sustain in dealing with this. Indeed, given your conduct, I am of the view that you blatantly misrepresented the facts of the case. I am also considering referring this matter to Police Scotland. I trust that this brings the matter to an end.”

The respondent ought not to have written to the secondary complainer as he did. The language used was ill-judged and was designed to prevent the secondary complainer pursuing the matter. There is a public interest in clients and others being able to make complaints to their solicitors. The complaint could have been handled much better.

However, when considering the whole context in which the conduct occurred, the Tribunal did not consider that the respondent’s conduct constituted a serious and reprehensible departure from the standards of competent and reputable solicitors. Having considered all the circumstances of this particular case in context, the Tribunal considered that the respondent’s conduct might represent a departure from the standards of conduct to be expected of competent and reputable solicitors, even if not a serious and reprehensible departure. Accordingly, the Tribunal found the respondent not guilty of professional misconduct but remitted the complaint to the Society.