Reports relating to Gerard Durkan; Cameron Fyfe; Derrick M Trainer

A complaint was made by the Council of the Law Society of Scotland against Gerard Durkan, solicitor, Harper Macleod LLP, Glasgow. The Tribunal found the respondent guilty of professional misconduct cumulatively but not severally in respect of (1) his failure to issue a terms of business letter to a client for work undertaken on her behalf in respect of the transfer of title to her home, with the result that the client, whom he knew or ought to have known was a vulnerable person – the respondent’s partner having identified a diagnosis of dementia and therefore susceptibility to manipulation by her family – could not safely or reasonably have been assumed by the respondent to be fully aware of what actions he was undertaking on her behalf or the consequences thereof; (2) his failure to act in the best interests of his client, a vulnerable person who was susceptible to manipulation by her family; (3) his taking instructions from her through her son who was to benefit from the transfer of title, without providing her directly with advice at any time on the implications of her actions or the alternatives available to her; (4) his continuing with the transfer of title in the face of a mandate terminating his agency; (5) his writing to the client after receiving the mandate without the consent of the new solicitors she had instructed; (6) his failure to meet with his client on her own to satisfy himself of her instructions; (7) his arranging for his client to sign the documentation for the transfer of title without providing her with advice particularly about the consequences in relation to her right of residence; (8) his remitting the signed documentation to solicitors acting for the disponees notwithstanding that he had received and had purported to obtemper a mandate which terminated his agency.

The Tribunal censured the respondent and fined him in the sum of £1,500.

The Tribunal’s main concern was the respondent’s failure, despite a number of what might be regarded as warning events, to identify his client at any time as being a vulnerable person. When the mandate was received, the Tribunal could well understand a concerned solicitor delaying implement if he had concerns about it having been granted under duress. However, the respondent took no steps at all to confirm that, but continued to act as if it had not been received, on the view that he had no documentation covered by the mandate.

The Tribunal considered that the respondent ought to have been aware of the possibility of manipulation of his client by any of the members of her family. Further, the Tribunal considered that the mandate was more than a formal request for past papers. Implicit in a mandate is the termination of agency; yet, notwithstanding receipt of the mandate, the respondent allowed himself to be compromised by acceding to pressure from one of his client’s sons to see his mother for the purpose of preparing and having executed the new power of attorney and disposition.

Having regard to the definition of professional misconduct as outlined in the Sharp case, the Tribunal was of the view that the respondent’s failures, when considered together, would be viewed by competent and reputable solicitors as serious and reprehensible and therefore sufficient to meet the Sharp test, although some of the elements of misconduct on their own might not have been sufficient.

In relation to the sanction to be imposed, the Tribunal noted the pressure that was placed on the respondent from his client’s son. The Tribunal considered whether it was necessary to restrict the respondent’s certificate, but took the view that this was a single failing to meet the required professional standard and that in consequence of the prosecution and the insight shown by the respondent into his failures, there was unlikely to be any repetition and therefore no need for him to be supervised.

The Tribunal considered that a censure alone would not, however, have marked the seriousness of a solicitor failing to protect the interests of his client as opposed to the interests of a person who might be regarded as the introducer of the business, namely the son, and therefore determined that there required to be a fine of £1,500 in addition.

Appeal under s 42A – Cameron Fyfe

An appeal was lodged with the Scottish Solicitors’ Discipline Tribunal by Cameron Fyfe of Drummond Miller LLP, Glasgow, in respect of a finding of inadequate professional service made by the Council of the Law Society of Scotland against the former firm of Ross Harper, and a direction that the fees and VAT to which the former firm was entitled should be nil, and the firm be required to refund all fees and VAT paid and to pay £1,500 compensation to the lay complainer.

After hearing lengthy submissions, the Tribunal found that the service provided to the lay complainer in respect of the management and administration of the lay complainer’s case was inadequate given the limited time between instruction and expiry of the triennium, that there was a failure to analyse, advise upon and take all appropriate steps to explore all the different grounds of potential claim to an adequate standard, and a failure to approach the issue of informed consent adequately. The Tribunal found that the decision of the Society was based on which acts or omissions of the solicitor amounted to the definition of inadequate professional service.

In the Tribunal’s view, no solicitor of competence advised by a medical practitioner that there was no record of what was said between patient and surgeon would have failed to make enquiry as to the recollection of the client regarding this and therefore discuss that part of the report in detail with the client. The Tribunal considered that a solicitor who failed for 11 weeks to make enquiries as to the whereabouts of the medical reports, and failed to use this period to identify a suitable expert willing to accept instructions, was guilty of inadequate professional service. In the Tribunal’s opinion, an agent does not discharge his duty to investigate and advise by merely sending a copy of the expert’s report to his client and inviting comment. The Tribunal was of the view that it was a matter for the Society’s committee to determine what the appropriate level of compensation should be, given the background to the complaint, and considered that it had given sufficient reasoning for the banding chosen and the level of compensation awarded. The Tribunal accordingly refused the appeal.

Derrick M Trainer

A complaint was made by the Council of the Law Society of Scotland against Derrick M Trainer, solicitor, Saltcoats. The Tribunal found the respondent guilty of professional misconduct in respect of his breach of rule 4 of the Solicitors (Scotland) Accounts etc Rules 2001 by having his client account in deficit for two periods.

The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that for a period of one year, any practising certificate held or issued to the respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer as may be approved by the Society’s Council or its Practising Certificate Subcommittee.

Allowing the client account to go into deficit is a clear breach of the Accounts Rules. The Tribunal considered that it is fundamental that client accounts are treated as sacrosanct and that solicitors do not allow their client account to go into deficit. To do so is damaging to the reputation of the legal profession and puts the public at risk. The Tribunal accordingly had no hesitation in finding that the respondent’s conduct amounted to professional misconduct. The Tribunal noted that the respondent was clearly contrite and had fully co-operated with the Society. The Tribunal considered that, in order to ensure protection of the public, it was necessary to restrict the respondent’s practising certificate for a period of one year. The Tribunal strongly suggested that during this period the respondent attend a training course on the Accounts Rules to ensure he is fully familiar with their terms, to prevent anything similar happening in the future.
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