Solicitor penalised for clause barring complaint
A solicitor who sits as a part time sheriff has been found guilty of professional misconduct for pressuring the person with whom his client was attempting to conclude an agreement to accept a clause that he would not bring or pursue a complaint against the solicitor.
Mark Thorley, of Thorley Stephenson in Edinburgh, was censured by the Scottish Solicitors' Discipline Tribunal for breaches of rules B1.2, B1.3 and B1.4.2 of the Solicitors' Practice Rules in 2017 when he was acting for a Ms B, who had formerly been in a relationship with a Dr A. The tribunal allowed Dr A 28 days to submit a written claim for compensation.
Ms B and Dr A had jointly owned two properties and were negotiating an agreement between them as to their disposal. Mr Thorley had been instructed since November 2014. In February 2017 Dr A made a complaint about Mr Thorley to the Scottish Legal Complaints Commission. Ms B believed he was trying to prevent Mr Thorley from acting for her. Both she and Mr Thorley considered the allegations to be baseless.
Following a discussion with Ms B, Mr Thorley proposed a clause in the agreement that "Neither party will make a complaint or otherwise raise any proceedings against the solicitor acting on behalf of the other party to include any complaint to the Law Society of Scotland or the Scottish Legal Complaints Commission." Dr A, who was legally represented, signed it under protest, as well as a separate letter of discharge regarding the complaint already brought. When he renewed the complaint a few months later, Mr Thorley threatened and then raised legal proceedings.
In its decision the tribunal said that although Mr Thorley believed his and his client's interests were aligned in this matter, the way he dealt with it was not appropriate. The agreement was between a separating couple and not the correct place to deal with a complaint. The clause introduced the potential "for derailment of that agreement", and a risk to the client of becoming involved in an action for implement. It was very wide and could potentially cover future actings, even if that was not what was intended. Other ways were available to resolve the complaint.
While it was suggested for Mr Thorley that this could not be professional misconduct due to lack of guidance on the subject, it was not practical to have guidance on every specific scenario and the rules on independence, integrity and best interests of client "clearly applied to the situation".
Mr Thorley had not acted dishonestly, but in introducing his own interests, his personal integrity could not be said to have been beyond question (rule B1.2). He had allowed his independence to be impaired (rule B1.3), and had permitted his personal interests to influence his actings on behalf of his client (rule B1.4.2).
"Having considered the whole circumstances", the tribunal concluded, "[Mr Thorley]'s conduct did amount to a serious and reprehensible departure from the standards of comp[etent and reputable solicitors and was therefore professional misconduct rather than merely unsatisfactory professional conduct. However, [his] culpability might not have been high enough to reach the threshold for professional misconduct but for the length of time he persisted with this clause."
In considering the penalty, the tribunal said the conduct was at the lower end of the scale. Mr Thorley had a clean record, had shown remorse and had been transparent with the tribunal. It was said that the consequences "were likely to be severe" regarding his part time judicial work. In the circumstances a censure was sufficient penalty.