Scottish Solicitors' Discipline Tribunal

A complaint was made by the Council of the Law Society of Scotland against Gerard John Robert McMahon, solicitor, Bothwell. The Tribunal found the respondent guilty of professional misconduct in respect that (a) on or around 30 April 2020 he, on behalf of the pursuer, signed and served a statutory demand for payment on Albarr Facility Management Solutions (sic) for £10,572.57, on which he designed himself as “solicitor” despite not having in force a practising certificate, thereby holding himself out to the recipient of the statutory demand to have a status as a practising solicitor which he did not at that time possess; (b) on 21 May 2020 and on subsequent dates, he purported to hold the qualifications or status “LLB. Dip LP, NP” as appended to a letter to the defender and emails to the court, despite not having in force at that time a practising certificate and consequently not holding the status of notary public, per the operation of s 58(5) of the Solicitors (Scotland) Act 1980; (c) on or around 8 June 2020, he prepared, signed and presented to the court electronically an initial writ within which he designed himself as a solicitor, craving the liquidation of the defender company, despite not having in force at that time a practising certificate; (d) he having improperly obtained the court’s authority by knowingly or recklessly presenting misleading documents to it seeking warrant, served and advertised notice of the pursuer’s petition in the Edinburgh Gazette and Metro newspaper; and (e) on or around 16 June 2020, he requested that the sheriff clerk appoint an interim liquidator to the defender company in reliance knowingly or recklessly on the defective and misleading documentation previously submitted to the court, and on which the court had granted warrant to serve the petition on the defender company.

The Tribunal ordered that the name of respondent be struck off the roll of solicitors in Scotland.

It is essential that solicitors act honestly and with integrity. The respondent’s conduct in holding himself out to be a solicitor to his client and the court (his name remained on the roll but he last held a practising certificate in 1998), was dishonest. Seeking the interim appointment of a liquidator could have had serious consequences for the defender company. The court system could only work if the trust placed in representatives was well placed. As was noted by the sheriff, the court and parties to a litigation are entitled to expect that a representative lodging a writ is qualified to do so. Solicitors with practising certificates are part of a regulated profession. They have to undertake continuing professional development. They pay professional dues and they must be insured. When things go wrong, the regulatory bodies and insurers provide a route for the aggrieved. Standards are maintained and the public is protected. The public interest and the reputation of the profession are harmed if unqualified persons carry out work reserved to solicitors with practising certificates. The respondent’s conduct had resulted in public criticism of him as a solicitor. His actions were a serious and reprehensible departure from the standards of competent and reputable solicitors. When considering protection of the public and upholding the reputation of the profession, no sanction other than strike off was appropriate in the circumstances of this case.

A complaint was made by the Council of the Law Society of Scotland against Thomas C Steel, Brunton Miller, Glasgow. The Tribunal found the respondent guilty of professional misconduct in respect that he failed or at least delayed unduly since the death of AM in 2011 in progressing the winding up of the executry, in particular with regard to the marketing and sale of the property at Nithsdale Road, Glasgow, owned by the deceased.

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 three 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 respondent admitted that he unduly delayed in winding up an estate for over nine years. There were some challenges such as an action for specific implement of missives in relation to another property the deceased had been planning to buy, and failure by one beneficiary, LH (the deceased’s partner), to engage with the respondent over the sale of Nithsdale Road. However, these were not insurmountable, and they did not excuse or explain the inordinate amount of time it had taken to wind up the executry. The respondent’s actions caused bank fees and penalties to be charged to the estate. The delay in selling the properties meant that repairs were necessary. The respondent ought to have discharged his functions as executor much more quickly. He should have been much more vigilant and followed up his correspondence to LH with action. He did not take control of the situation, even when it became clear that there might be a petition to sequestrate the estate. The Nithsdale Road property ought to have been marketed for sale at a much earlier stage. It was of great concern to the Tribunal that the respondent agreed, following SLCC mediation in December 2018, to market the property in January 2019, but that this was not done by the agreed deadline and was still outstanding in 2021. The respondent delayed in answering the secondary complainer’s correspondence. This kind of conduct brings the profession into disrepute, not just with the individual beneficiaries in this case, but also the wider public.