SSDT Decision: Robertson

The latest SSDT decision covers a complaint made by the Council of the Law Society of Scotland against Andrew John Robertson.

A complaint was made by the Council of the Law Society of Scotland against Andrew John Robertson, solicitor, Gourock. The Tribunal found the respondent guilty of professional misconduct in relation to various breaches of rules B1.2, B1.4, B1.5, B1.9 and B1.10 of the Law Society of Scotland Practice Rules 2011. The Tribunal censured the respondent and fined him £6,000. Following agreement between the parties, the Tribunal awarded compensation of £3,474.20 to the secondary complainer, AG.

The respondent originally acted for the father and mother (Client 1 and Client 2 respectively) of AG in or around 2007 when he took instructions, drafted and executed Powers of Attorney (POA) for both of them. The clients were well known to the respondent. Each client appointed the other as their continuing and welfare attorneys, whom failing AG. The POA contained provisions for the powers therein to be triggered by the express wish of the granter or, alternatively, the incapacity of the granter as established by an independent medical practitioner.

Both clients sustained serious injuries in a road traffic accident in 2016. Client 2 was more seriously injured. Thereafter, the respondent took instructions from Client 1 on behalf of Client 2. The respondent did not seek or obtain Client 2’s authority to take instruction in this matter and concluded, following meetings, that Client 2 lacked capacity following the accident. No contemporaneous medical opinion relating to Client 2’s capacity was sought or obtained by the respondent at that time.

In 2017 the respondent took instructions from Client 1 on behalf of both him and Client 2 in respect of IHT planning. This involved the preparation, drafting and execution of various legal documents. The respondent witnessed Client 1 signing those documents for Client 2, both by substituting his own signature for that of Client 2, and also by signing on behalf of Client 2 in his own name.

In 2018 the respondent took instructions from Client 1 on behalf of both him and Client 2 in relation to the sale of another property which was held in one half pro indiviso shares each by Client 1 and Client 2. Missives were concluded on behalf of both clients and the purchaser of the property was their son.

An independent medical opinion on Client 2’s capacity was subsequently obtained by the respondent in April 2019. It concluded that Client 2 lacked capacity which supported the respondent’s initial assessment. However, the opinion was not retrospective and, in any event, did not relate to the time period when the respondent failed to consider the proper activation of the triggering clause in the POA.

Following a complaint from AG regarding the handling of Client 1 and Client 2’s affairs, the respondent attempted to take steps to remedy the situation. However, he failed to provide a full written explanation and proposals for rectification affording the clients an opportunity to seek alternative legal advice.

In accepting instructions from Client 1 in respect of Client 2’s affairs, the respondent failed to act in the best interest of Client 2 contrary to Rule B1.4 and without the authority of Client 2 contrary to Rule B1.5. In failing to obtain the independent medical report at the appropriate juncture, the respondent failed to act in the interests of Client 2 contrary to Rule B1.4 and failed to act with diligence and appropriate skill contrary to Rule B1.10. In implementing Client 1’s instructions in relation to Client 2’s interest in relation to two properties and a Family Protection Trust, the respondent failed to act in the best interest of Client 2 contrary to Rule B1.4 and acted without authority for Client 2 contrary to Rule B1.5. In taking steps to remedy matters the respondent failed to provide a full written explanation for these necessary steps and thus failed to communicate effectively with his client contrary to Rule B1.9, were not in the best interests of Client 2 contrary to Rule B1.4 and called into question his personal integrity contrary to Rule B1.2.

The Tribunal was satisfied that the respondent’s behaviour amounted to a serious and reprehensible departure from the standards of competent and reputable solicitors. The Tribunal noted that the respondent is now retired. The Tribunal had regard to testimonials indicating that the respondent had been a highly regarded professional who had a lengthy career.