Sheriff reports non-practising solicitor who signed writ
An individual who signed an initial writ as a solicitor when he had not held a practising certificate for 19 years has been reported by a sheriff to the Lord Advocate as well as to the Law Society of Scotland.
Sheriff John McCormick at Glasgow Sheriff Court dismissed as incompetent a petition seeking the winding up of a company referred to as A F M S Ltd, after it transpired that the "Mr M" who had signed the initial writ, designing himself "solicitor", was not on the published list of practising solicitors.
On the court raising the matter having noted certain irregularities when the appointment of an interim liquidator was sought, Mr M replied by email that he had been a practising solicitor some 19 years ago and his name remained on the roll of solicitors as a non-practising member. He did not have a practicing certificate, but was a commercial attorney.
However his name was not on the current list of commercial attorneys, and he subsequently claimed to have misunderstood the term. He also stated that he was unaware that without a practising certificate he was not entitled to sign an initial writ on behalf of a third party, and that a solicitor had since advised him that the petition did not require to be signed by a practising solicitor.
In a note Sheriff McCormick drew attention to the terms of s 32 of the Solicitors (Scotland) Act 1980, which makes it an offence for an unqualified person – defined in s 4 as one not holding a practising certificate – to (among other things) prepare a writ relating to court proceedings.
Observing that the recipient of the preceding statutory demand might reasonably conclude that a "solicitor" who signed it was one practising as such, the sheriff continued: "This case raises public protection issues. I will not ignore that. The court and each party to a litigation is entitled to expect that a representative lodging a writ is qualified to do so within the terms of the 1980 Act."
He added: "Solicitors with practising certificates spend time and expense on continuing professional development and, where events go awry, their regulatory professional body and insurers provide a route for the aggrieved. Standards are thereby maintained.
"The same may not be said about those trading on a misleading veneer of competence, status and public confidence which the selective use of the professional title 'solicitor' engenders, all while choosing not to maintain a practising certificate (with the accompanying regulation and public protection)."
Dismissing the petition as incompetent, he stated that he sending his note to the parties, the proposed liquidator, the Society's registrar – and also to the Lord Advocate, "for him to take whatever action, if any, he considers appropriate in the public interest".