Section 42A appeal - Malcolm Keith MacAulay Cameron
An appeal was made by Malcolm Keith MacAulay Cameron, solicitor, Glasgow against the finding of inadequate professional service by the Council of the Law Society of Scotland in relation to the complainer, Mr A, and a direction that the appellant’s former firm’s fees be restricted and that the appellant pay compensation of £750 to Mr A. The Tribunal refused the appeal.
The appeal related to head of complaint 2, being the finding that the appellant had failed to take steps to settle an action, contrary to his letter dated 10 February 2006. The Tribunal first considered whether there was any documentation of material importance which was not seen by the appellant prior to the Society’s committee making its decision. It found that there was nothing new in the letter from the lay complainer which was material, and accordingly did not find that the appellant had been deprived of an opportunity to comment on a matter of materiality. It also found that head 2 was specific and relevant and gave proper notice to the appellant. The Tribunal considered that the Society could not be criticised for making the determination that there was inadequate professional service on the basis of the evidence that it had at the time. The Tribunal also did not find the award of compensation or reduction of fees to be unreasonable or excessive and in the whole circumstances confirmed the Society’s decision.
Alastair Lindsay Cowan
A complaint was made by the Council of the Law Society of Scotland against Alastair Lindsay Cowan, solicitor, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his preparing and completing a letter which inaccurately significantly overstated the level of his salary, knowing that the information would be used by Halifax plc in processing his mortgage application, and by doing so his bringing his personal integrity into disrepute.
The Tribunal censured the respondent and restricted his practising certificate for a period of three years.
It is essential in order to maintain the reputation of the profession that solicitors act with honesty, truthfulness and integrity at all times. In the absence of any explanation from the respondent as to the purpose in submitting the false information, the Tribunal was forced to conclude that his only motive in putting in a salary higher than his actual salary was for personal gain. The Tribunal took account of the fact that the respondent had been working for the last year and a half as a senior associate rather than a partner, and of his guilty plea. However the Tribunal considered that in order to protect the public, and to mark the severity with which it regarded a lack of integrity in connection with private matters, a restriction on the respondent’s practising certificate for a period of three years was necessary.
Joy Patricia Dunbar
A complaint was made by the Council of the Law Society of Scotland against Joy Patricia Dunbar, solicitor, Solicitors Direct, Aberdeen (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of her failure to comply with her contractual obligations to lenders in conveyancing transactions, her failure to comply with the explicit instructions provided to her by her client being the obligations imposed upon her as provided within the CML Lenders Handbook applicable to Scotland, her failure to act with absolute propriety and to protect the interests of her client being the lender in respect of each transaction, and her failure to comply with the terms of rule 6(1) of the Solicitors (Scotland) Accounts etc Rules 2001.
The Tribunal censured the respondent and fined her in the sum of £1,000.
It was clear from the facts established and the productions before the Tribunal that the respondent was acting on behalf of lenders in respect of all three transactions and that the lender’s instructions explicitly advised the respondent that she required to comply with the conditions as set out in the CML Lenders Handbook. The respondent had a duty to report to the lender that the properties in question had been owned by a seller for a period of less than six months prior to the transaction settling. The Tribunal had particular concerns with regard to the two transactions which settled on the same day and were back-to-back transactions. The Tribunal considered that the respondent made a deliberate and conscious decision not to report rather than being negligent. It was within the respondent’s knowledge that something was up and yet she breached her obligations while being aware that there was a potential risk and she chose not to report it. The Tribunal considered that this was reckless. In the Tribunal’s view a competent and reputable solicitor would not have acted in this way. The Tribunal accordingly considered that the respondent’s conduct was serious and reprehensible enough to meet the Sharp test and made a finding of professional misconduct. The loan instructions in two of the transactions explicitly prohibited the drawing down of funds other than where there had been full compliance with the terms of the CML Handbook and accordingly the Tribunal also found a breach of rule 6(1) of the Accounts Rules. It is important in order to preserve the reputation of the profession that solicitors deal with conveyancing transactions appropriately. The Tribunal accordingly imposed a fine of £1,000 in addition to a censure.
George A M Sandilands
A complaint was made by the Council of the Law Society of Scotland against George A M Sandilands of Messrs Beveridge Herd & Sandilands WS, solicitors, Kirkcaldy (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his unconscionable delay in the completion of an executry. The Tribunal censured the respondent and fined him in the sum of £1,000.
The Tribunal noted that there had been a delay of seven years in finalising an executry. There was no obvious reason for this and the respondent’s attention had been drawn to the delay in 2008 when the first complaint was made to the Society. The Tribunal considered that the lengthy delay in a relatively straightforward executry did amount to professional misconduct. However it took into account that this matter involved a failure in relation to one single executry and had regard to the respondent’s lengthy experience as a solicitor and his previous unblemished record. It also took account of the fact that the matter had now been satisfactorily completed, the respondent had cooperated with the Society and had not charged a fee for the work which had been done. The respondent also appeared before the Tribunal and showed insight into his failure. The Tribunal accordingly considered that a censure and fine was sufficient penalty.Scottish Solicitors Discipline Tribunal website: www.ssdt.org.uk
In this issue
- Capacity and undue influence
- Tolent clauses in construction contracts
- Mending the safety net
- Keeping it in the family
- Speak with impact
- The complication of tax simplification
- Reading for pleasure
- Opinion column: SIHRG
- Book reviews
- Council profile
- President's column
- The price is right?
- Learning on the slate
- A better way to talk
- Plain sailing?
- Kilbrandon in the 21st century
- Who's who in banking and finance
- Corporate speak
- Here we go again...
- Deadlines in negotiations
- Scottish Solicitors' Discipline Tribunal
- Shuffling walnuts?
- A bold step forward
- Action to safeguard vulnerable clients
- Buildmark acceptance goes online
- Law reform roundup
- Escape from disaster?
- Ask Ash
- Update branches out
- Business checklist
- Work, the deciding factor