An appeal was made under s 42ZA(9) of the Solicitors (Scotland) Act 1980 by Alan Strain, Brighton, Queensland, Australia against the determination by the Council of the Law Society of Scotland upholding a complaint of unsatisfactory conduct made by David Hamilton Kidd, Edinburgh against the appellant and the direction by the first respondents of the same date ordering the appellant to pay a fine of £1,000. The Tribunal upheld the appeal and quashed the determination and direction.
The Tribunal was asked by the appellant to allow him to insert an additional ground of appeal relating to an allegation of apparent bias on the part of one member of the Society’s subcommittee considering the complaint, and to sist the appeal proceedings. The first respondents moved the Tribunal to ordain the appellant to find caution. After hearing submissions the Tribunal allowed the appeal to be amended but refused the motions to sist and lodge caution. It accepted that it was competent for it to order caution to be found, but in this case took the view that there were no grounds to support the motion. There was no suggestion that the appellant was impecunious. The first respondents accepted that the grounds of appeal were statable. There was no suggestion that an award of expenses would not be enforceable in Australia.
The appeal thereafter proceeded to a full hearing with evidence led by both parties. The Professional Conduct Subcommittee had determined that the appellant’s conduct in respect of his involvement in a decision to submit a tender to a client of his firm which had contained a misrepresentation amounted to unsatisfactory professional conduct. The appeal struck at the determination on the grounds: (1) of the apparent bias referred to above; (2) that there was no misrepresentation within the tender; (3) that the subcommittee had amended the terms of the original complaint.
Having heard evidence in particular from the appellant, and considering the evidence before the subcommittee, the Tribunal concluded that the tender submitted reflected the appellant’s state of knowledge at the time the tender was prepared, did not disclose a misrepresentation on his part and therefore did not amount to unsatisfactory professional conduct. Having unanimously decided to quash the determination and direction on the basis of this ground, the Tribunal did not consider it necessary to have regard to the other grounds of appeal.
Noemaan Farooq Butt
A complaint was made by the Council of the Law Society of Scotland against Noemaan Farooq Butt, solicitor, formerly of NRBS Solicitors, Glasgow. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his repeated breaches of rule 6 of the Solicitors (Scotland) Accounts etc Rules 2001 and of rule 4(1)(a) of those rules which included his falsification of bank records and issuing false and misleading accounts certificates, and his failure between 5 October 2010 and 9 March 2011 to have in place adequate systems for the supervision of staff. The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland.
The respondent admitted the majority of the averments of fact in the complaint and admitted a catalogue of professional misconduct which included acts of dishonesty. He had misappropriated funds from the client account to pay a Mr X and then had taken elaborate and deliberate steps to falsify records to cover up the true position. He accepted that the alleged extortion by Mr X was not a defence to his conduct, but invited the Tribunal to give these allegations considerable weight in considering mitigation. No evidence of these threats however was produced beyond the respondent’s testimony. The Tribunal found the respondent a wholly unreliable and incredible witness and considered that he disclosed little remorse or insight into the serious nature of his conduct, which had persisted over a long period of time and clearly suggested that the respondent was a danger to the public. The Tribunal could not see how any restriction on the respondent’s practising certificate would provide the public with the necessary protection and concluded that the only disposal available was to strike his name from the Roll of Solicitors. There was a secondary complainer who made a claim for compensation but then withdrew this claim. The Tribunal ordered deferred publicity until the conclusion of any Crown Office investigation and any prosecution that might proceed thereon. The Crown Office has since confirmed that publicity can be given to this decision.
Sophina Mehmood Ali
A complaint was made by the Council of the Law Society of Scotland against Sophina Mehmood Ali, solicitor, Glasgow. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of her convictions of 17 November 2014 for contraventions of s 103(1)(b), s 143(1) and (2) and s 47(1) of the Road Traffic Act 1988 and her conviction of 14 August 2014 for a contravention of s 143(1) and (2) of that Act. The Tribunal censured the respondent.
It is quite clear that a solicitor’s conduct in his or her personal life can amount to professional misconduct. A solicitor must seek to maintain the highest standard of conduct. It was clear in this case that the respondent’s conduct represented a serious departure from the standards expected from a member of the profession, in particular with regard to the breach of a court order. The public must have faith in the profession. Such conduct brings the profession into disrepute. Having regard to the fines already imposed, the three days spent in custody, and the otherwise good record of the respondent, together with the content of a letter previously submitted to the Society, the Tribunal concluded that the matter should be dealt with by a censure.
In this issue
- Cutting the RoS bouncebacks
- Landlords still?
- Split parenting: fewer tears
- Brussels briefing
- Reading for pleasure
- Opinion: Frankie McCarthy
- Book reviews
- President's column
- DPA: one year on
- People on the move
- Team building
- Ward's words
- The end of deeds of conditions?
- Human rights and land reform: unanswered questions
- Aye to Brussels
- Appeals: the new landscape
- The 2015 Act: some more thoughts
- Three months in planning
- Buy-to-let: no longer a good bet?
- Scottish Solicitors Discipline Tribunal
- What is ScotLIS?
- Energy input
- Law firms help students' business skills
- Paralegal pointers
- Law reform roundup
- CML Handbook amended
- Service eases stress of separating parents
- Appreciation: Tahir Elçi
- The rocky road to good intentions
- Risk review 2015, risk forecast 2016
- Ask Ash
- What's in store for SYLA in 2016?
- Reflections from the Commission