A complaint was made by the Council of the Law Society of Scotland against Mark Richard Thorley, Thorley Stephenson Ltd, Edinburgh. The Tribunal found the respondent guilty of professional misconduct in respect that he (a) inserted into a minute of agreement a provision requiring the signatories to refrain from making any complaint or raise any proceedings against the solicitors representing the other party; (b) required that the secondary complainer sign a letter of discharge agreeing to withdrawal of the complaints already made to the SLCC; and (c) wrote a letter threatening to raise court proceedings in the event that the secondary complainer did not withdraw a new complaint to the SLCC. The Tribunal censured the respondent.
The way the respondent dealt with this matter was not appropriate. The minute was an agreement about a separating couple’s money and finances. This was not the correct place to deal with a complaint. The Tribunal accepted the respondent’s evidence that he was trying to meet the best interests of his client; however, he sought to insert a clause into the minute of agreement that was in his interest. He did so without proper consideration of the full implications. The Tribunal considered that while to some extent, the interests of the respondent and his client were aligned, in that neither wished to deal with a complaint, full and proper consideration of the client’s interests would have counted against such a clause as drafted.
The client’s best interests lay mainly in having the financial arrangements between her and the secondary complainer resolved.
The clause introduced potential for derailment of that agreement. The clause in this case was very wide and could potentially cover future actings, even if that was not what the respondent had intended. There were other ways of resolving the complaint without introducing a clause into the client’s own minute of agreement. The Tribunal considered that in introducing his own interests, the respondent’s personal integrity could not be said to have been beyond question (rule B1.2). He had allowed his independence to be impaired (rule B1.3) and had permitted his personal interests to influence his actings on behalf of his client (rule B1.4.2). Having considered the whole circumstances, the respondent’s conduct did amount to a serious and reprehensible departure from the standards of competent and reputable solicitors.
The conduct was at the lower end of the scale of professional misconduct. It was an isolated incident involving only one case. There were no findings of unsatisfactory professional conduct or professional misconduct against the respondent. He had shown remorse and had been transparent when giving evidence to the Tribunal. He had a long career without incident. With all that in mind, the Tribunal was of the view that censure was sufficient penalty.
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