William Bryden Crearie
A complaint was made by the Council of the Law Society of Scotland against William Bryden Crearie, solicitor, Glasgow. The Tribunal found the respondent guilty of professional misconduct in respect of his acting in a conflict of interest situation in preparing a minute of agreement when parties thereto had competing interests, without tendering any advice as to the meaning or effect of that minute of agreement. The Tribunal censured the respondent.
The Tribunal heard evidence from the secondary complainer and the respondent. The Tribunal also had before it a joint minute agreeing the facts in the complaint so far as not inconsistent with the respondent’s answers. The Tribunal considered that the respondent’s active role in a conflict of interest situation, without any advice being tendered, represented a departure from the standard of conduct expected of a competent and reputable solicitor that could only be considered serious and reprehensible. The Tribunal considered that a solicitor could not absolve themselves of their duty by insertion of a clause in the minute of agreement which recorded there having been the opportunity to take independent legal advice.
Where a solicitor was to any extent involved in the creation of a document which was to be signed by their client, they needed to take adequate steps to ensure that there was informed consent to its terms, and that required communication of advice as to what the solicitor understood the terms to mean. The Tribunal found some of the other averments not sufficient for a finding of misconduct.
In connection with penalty, whilst the Tribunal accepted that the respondent’s actions could be described as shortsighted, the indications of there being a potential conflict of interest had been significant and the process of preparing a minute of agreement had taken a year. The respondent’s demeanour when giving evidence disclosed no insight or regret for the action. The Tribunal, however, balanced these issues with the previous good conduct of the respondent over nearly 30 years and considered that a censure would be an appropriate disposal.
At a further hearing the Tribunal dealt with a claim for compensation. It found that the secondary complainer had been directly affected by the respondent’s misconduct and awarded compensation in the sum of £1,820 in respect of loss, inconvenience and distress resulting from the misconduct.
A complaint was made by the Council of the Law Society of Scotland against William Meechan, Campbell & Meechan, Glasgow. The Tribunal found the respondent guilty of professional misconduct in respect of his failure to communicate effectively with his client, the secondary complainer; his failure to respond to the Scottish Legal Complaints Commission; his failure to respond to the Society; his failure to provide an explanation to his client or to the Society in connection with the source of £25,000 purported to be a settlement sum; his failure to issue an invoice prior to taking a fee of £3,750; his failure to act with trust and personal integrity in connection with the giving of evidence in relation to an affidavit of 18 October 2013 following his giving of misleading information to the court; his failure to demonstrate appropriate customer due diligence in breach of rule B6 of the Law Society of Scotland Practice Rules 2011 and the Money Laundering Regulations 2007; his acting for clients in a potential conflict situation in breach of rule B1 of the Practice Rules; his retaining of the proceeds of an executry in a client account, making cash payments to the client, and brokering a loan arrangement with another client, all serving to conceal the first client’s financial position when she was in receipt of state benefits, in breach of rule B1; his delay or failure to confirm to the Financial Compliance Department that funds provided to the firm were returned to the original sources, in breach of rule B6; his drawing down of lender/client funds in the absence of written authorisation, in breach of rule B6; his failure to maintain an appropriate audit trail and his recording of incorrect narratives within the firm’s accounts, in breach of rule B6; his delay or failure to provide the Society with information requested in connection with client receipts, in breach of rule B6; his failure to ensure that at all times sufficient accounting records were kept to show the true financial position of his firm, in breach of rule B6; and his failure to render a fee note to an executry prior to taking an interim fee, in breach of rule B6.
The Tribunal struck the respondent’s name from the Roll of Solicitors in Scotland.
The respondent had entered into minutes of agreement accepting that he was guilty of professional misconduct, and the conduct admitted was undoubtedly extremely serious. There were significant aggravating factors. The behaviour was a course of conduct over a long period of time involving a large number of transactions and many different aspects of misconduct. Elements of the misconduct disclosed dishonesty. The respondent had previous findings of unsatisfactory conduct in analogous matters where he had been ordered to retrain, and yet he had still become involved in the current matter. He also had a previous finding of professional misconduct. The Tribunal considered that the respondent was a danger to the public. Although the Tribunal accepted that the respondent had co-operated with the Tribunal proceedings and expressed remorse and understood the seriousness of his conduct, it considered that the nature of the conduct significantly called into question his honesty and trustworthiness to the extent that it demonstrated that the respondent was not a fit and proper person to be a solicitor.
The secondary complainer confirmed that she had accepted the respondent’s offer of compensation and accordingly her compensation claim was treated as withdrawn.
A complaint was made by the Council of the Law Society of Scotland against James Purvis, solicitor, Coatbridge. The Tribunal found the respondent not guilty of professional misconduct and remitted the complaint to the Society in terms of s 53ZA of the Solicitors (Scotland) Act 1980.
The Tribunal considered that the respondent’s failure to ensure that separate financial records were maintained relating to an executry and the personal business of a client, in the circumstances of this case, was not of itself sufficiently serious and reprehensible to amount to professional misconduct. The Tribunal considered in some detail whether this, together with the provision of inaccurate and incorrect information to the Society’s committee and the failure to adhere to an undertaking given, would be sufficiently serious to meet the Sharp test. This case involved one isolated file. The respondent provided the Society with inaccurate and misleading information but did engage with the Society. The Tribunal did not consider that the respondent’s conduct was sufficiently serious and reprehensible so as to meet the test for professional misconduct, but considered that it might well amount to unsatisfactory professional conduct. The Tribunal accordingly remitted the case under s 53ZA.
Stephen Michael Skimming
A complaint was made by the Council of the Law Society of Scotland against Stephen Michael Skimming, c/o an address in Cumbernauld. The Tribunal found the respondent guilty of professional misconduct in respect of his failure to respond to a client’s correspondence sent to him in November and December 2012, his failure to respond to correspondence from the Society and his failure to comply with the statutory notice issued by the Society. The Tribunal censured the respondent.
The Tribunal has held on many occasions that this type of conduct is sufficient to amount to professional misconduct. It is a breach of rule B1.9 of the 2001 Practice Rules, and failure to respond to the Society hampers it in the performance of its statutory duty and brings the profession into disrepute.
The Tribunal, however, considered the respondent’s misconduct to be at the very lowest end of the scale of professional misconduct. His failure to respond was in respect of one client and one matter. It had, however, caused inconvenience and distress to the secondary complainer and had hampered the Society in the performance of its statutory duties. The Tribunal considered that in the whole circumstance a censure would be a sufficient penalty. The secondary complainer was awarded £250 plus £22 for travelling expenses to the hearing.www.ssdt.org.uk
In this issue
- Legal protection of adults – an international comparison
- The UPC post-Brexit: unified, “emmental-ed”, or dead?
- Proof of purpose: IHT and APR
- Bankruptcy consolidated: what do I need to know?
- Dividends – compliant but challengeable?
- FGM mandatory reporting: an example to follow?
- Reading for pleasure
- Opinion: Neil Hay
- Book reviews
- President's column
- Next pieces of the jigsaw
- People on the move
- Beginner's guide
- As simple as that?
- Excellence in action
- "That is not how we do it here"
- Rebranding in the digital age
- Brexit: Brussels in a holding pattern
- Common areas: keep Pandora's box shut
- Police: qualified experts?
- Is that overprovision policy watertight?
- Impact assessments still important
- The vital paper trail
- Scottish Solicitors' Discipline Tribunal
- Controlling interests: problem questions
- Law under orders
- Prisoner correspondence: a reminder
- Law reform roundup
- Society, Parliament revamp law student competition
- Foundation for aspiration
- Payment fraud: take five
- Ask Ash
- Better together?
- Paralegal pointers