Scottish Solicitors' Discipline Tribunal Decisions - January 2024 Update

A Complaint was made by the Council of the Law Society of Scotland against David Haddow Campbell, Anderson Strathern LLP, 1 Rutland Court, Edinburgh (“the Respondent”). A preliminary hearing was set to determine the Respondent’s preliminary plea regarding the relevancy and specification of the Complaint.

It was agreed that the Respondent acted for F and his son, M. F told the Respondent he had made a will in Italy. On F’s death, M asked the Respondent to wind up his father’s executry as an intestate estate. The Respondent declined to act for the executry on the basis that he knew of the will in Italy. However, he continued to act for M in relation to other matters, some of which were connected to the executry case which was being wound up by other solicitors on the basis of intestacy. M told the Respondent that the will was not valid in Italy because it was not signed before a Notary Public. The Complainers criticised the Respondent for continuing to act for M and for failing to disclose the existence of the will to the solicitors acting in the executry from 2003-2005.

The Tribunal’s task was not to determine the issue of professional misconduct but rather to examine the Complaint and decide whether a sufficiently relevant and specific case had been pled against the Respondent. The Tribunal was not satisfied that the Complainers had averred a relevant case of fraud, or therefore a relevant basis upon which the Respondent might be professionally criticised for failing to adhere to an obligation of disclosure, notwithstanding duties of confidentiality and legal professional privilege. To that extent, the Tribunal partially sustained the Respondent’s plea to the relevancy. The Tribunal considered whether this was sufficient to necessitate dismissing the Complaint in its entirety, on grounds of relevancy. It stopped short of doing so, because it considered that the Complaint as framed was capable at least of being construed somewhat more widely. It seemed to the Tribunal that the question whether the Respondent continued to act appropriately, in accordance with proper instructions could only ultimately be determined following an evidential hearing.

The Tribunal considered the plea to the specification relating to the allegation that the Respondent had accepted improper instructions by continuing to act for the Respondent in matters connected to the executry. The Tribunal was satisfied that the averments relating to the Respondent continuing to accept improper instructions were sufficiently specific to allow that part of the Complaint to proceed to proof. Therefore, the Tribunal repelled the Respondent’s preliminary plea regarding the specification of the Complaint.

The Tribunal’s written decision was intimated to parties. The Complainers sought leave to withdraw the Complaint and this was granted.

A Complaint was made by the Council of the Law Society of Scotland against Shagufta Ghafar, Ghafar & Co Ltd, 538 Cathcart Road, Govanhill, Glasgow (“the Respondent”). The Tribunal found the Respondent guilty of professional misconduct singly in respect that (1) she acted in a conflict of interest situation, and in cumulo in respect that (2) she failed to act in the best interests of her client and (3) presented a disposition for registration multiple times with her handwritten changes made without the consent of the Secondary Complainer.

The Tribunal censured the Respondent.

There was a conflict of interest between Mr X and the Secondary Complainer at the time the Respondent was instructed. The unusual features of the proposed transaction ought to have made the Respondent examine it carefully. The Secondary Complainer was proposing to give title to the property to Mr X, his position only being protected to the extent that the minute of agreement could be enforced. The multiple mandates prepared by the Respondent suggested she was aware of the potential problems. However, she did not identify the conflict. The risk identified in the minute of agreement that Mr X might borrow using the property as security did transpire. When the Respondent became aware of that on 30 August 2017, the conflict of interest was obvious, yet the Respondent did not withdraw, and instead continued to act by presenting and then withdrawing the application for registration. In acting in a conflict of interest situation, the Respondent breached Rule B1.7.1. The Respondent’s actions were a serious and reprehensible departure from the standards of competent and reputable solicitors and therefore constituted professional misconduct.

On 30 August 2017, the Respondent knew that Mr X had arranged a loan using the property as security. She knew this was in breach of the minute of agreement signed on 25 March 2016. She did not contact the Secondary Complainer as a matter of urgency to explain the situation to him. Her failure to do this meant that she did not act in his best interests, contrary to Rule B1.4.1. This failure flowed from the Respondent’s conduct in acting in a conflict of interest situation. The Tribunal considered that this aspect of the case constituted professional misconduct in cumulo with the finding of misconduct related to the conflict of interest.

A party to a deed should be consulted about any alterations to it before it is presented for registration. The Tribunal noted that the handwritten amendments to the dispositions occurred after the application was rejected by the Registers in error. The amendments were carried out with the intention of better identifying the property to be conveyed. The Respondent attempted to solve a problem which was not of her making, without troubling the Secondary Complainer. While appreciating the background to the amendments, the Tribunal noted that the Secondary Complainer should have been consulted regarding these changes. The Respondent should not have acted as she did. However, the Tribunal considered that this aspect of the case constituted professional misconduct in cumulo with the finding of misconduct related to conflict of interest.

A Complaint was made by the Council of the Law Society of Scotland against Michael Ramsay, Ramsay & Co. Solicitors & Estate Agents, 974 Maryhill Road, Maryhill, Glasgow (“the Respondent”). A preliminary hearing was set to determine the preliminary plea regarding the relevancy of the Complaint which was contained in the Respondent’s Answers.

The Complaint referred to shortcomings identified at the Respondent’s practice unit during a Law Society inspection in November 2018. The alleged failures related to reported breaches of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on Payer) Regulations 2017 (“2017 Regulations”). The Respondent intimated a preliminary plea in his Answers to the effect that the Complaint contained no relevant averments of professional misconduct and should be dismissed. The Respondent asked the Tribunal to address two questions. The first question was whether the Respondent as a manager of a practice unit was personally under a duty to comply with the requirements of Rule B6.23 in terms of Rule B6.2.3 of the Law Society of Scotland Practice Rules 2011. The second question was whether the averments in the Complaint contained relevant allegations of professional misconduct. The Tribunal answered both questions posed by the Respondent in the negative. It upheld the Respondent’s preliminary plea and dismissed the Complaint. The Tribunal found the Complainers liable in the expenses of the Respondent on the usual basis. The Tribunal directed that publicity would be given to the decision naming the Respondent but that there was no requirement to name any other person.

A Complaint was made by the Council of the Law Society of Scotland against Cameron Hunter Mackenzie, Smith & Grant, Rathellan, High Street, Leven (“the Respondent”). The Tribunal found the Respondent guilty of professional misconduct in cumulo in respect that he; (a) failed to comply with his responsibilities as a Client Relations Manager of the firm by failing to send a response to the Secondary Complainer in relation to her letter of complaint dated 6 July 2018; (b) failed to provide the agents acting for the Secondary Complainer with information concerning her late father’s estate between 13 November 2014 and 19 April 2016 despite numerous requests to do so throughout this period; (c) failed to advise the Secondary Complainers of their legal rights entitlement to the estate as beneficiaries; and (d) failed or unduly delayed to respond promptly and efficiently to correspondence and statutory notices received from the Council in respect of its regulatory function in relation to two Complaints.

The Tribunal censured the Respondent and fined him £5,000. Two Secondary Complainers made a claim for compensation and parties reached an agreed settlement. The Tribunal issued interlocutors ordaining the Respondent to pay compensation of £3,000 to one Secondary Complainer and £5,000 to the other.

The Respondent’s misconduct persisted for a lengthy period, from November 2014 to July 2021. He failed in his obligations to third parties, professional colleagues and the Law Society acting in its role as regulator of the profession. He failed in his duties in his capacity as solicitor and as the Client Relations Partner of the firm. The Tribunal was satisfied that the established conduct fell below the requisite standard to the degree that could only be described as serious and reprehensible. He was therefore guilty of professional misconduct.