Scottish Solicitors' Discipline Tribunal: July 2022

A complaint was made by the Council of the Law Society of Scotland against Desmond William Donoghue, solicitor, Edinburgh. The Tribunal found the respondent guilty of professional misconduct in that he (a) as designated cashroom manager, failed to disburse a client’s balances when there was no longer any reason to retain them; and (b) failed to respond to correspondence and statutory notices received from the Council, impeding the Council in its statutory obligation to investigate complaints. The Tribunal censured the respondent.

Following conclusion of a transaction, the respondent held funds for the secondary complainer. A sum was due to Revenue Scotland for LBTT. The respondent failed to pay this. The secondary complainer incurred a penalty. The respondent failed to disburse the client’s balance when there was no longer reason to retain the money. He was both the designated cashroom manager and the person who dealt with the transaction. Adherence to proper cashroom procedures would have alerted the respondent to the position. The secondary complainer repeatedly attempted to have the respondent act. Following a complaint, he failed to cooperate and respond about the investigation. This impeded the Council in its statutory obligation. The Society cannot properly exercise its function to protect the public without solicitors’ cooperation. These failures undermine the public’s trust in the profession, and therefore its reputation. In the circumstances, the Tribunal was satisfied that the respondent was guilty of professional misconduct.

A complaint was made by the Council of the Law Society of Scotland against Douglas Kilpatrick, PRP Legal Ltd, Glasgow. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect that he failed to return loan funds to a lender within the timescale specified in an undertaking, failed to communicate with the lender, and breached rules B1.4.1, B1.5.1, B6.2.3(b) and B6.11.1 of the Law Society of Scotland Practice Rules 2011. The Tribunal censured the respondent and fined him £4,000.

The respondent was instructed by a purchaser and lender in a conveyancing transaction. He signed a certificate of title which contained an undertaking to return the loan funds to the lender within five working days if settlement did not take place. His firm received £434,960 on 25 May 2018 from the lender. This money was not returned to the lender until 21 September 2018. In the interim, the respondent received monthly cashroom printouts which contained this balance, and two reminder letters from the lender. He had several conversations with the cashier about it.

Solicitors must protect the interests of the lender with the same care and responsibility as they give to the purchaser. They must not prefer the interests of one client over another. They must act in the best interests of their clients (rule B1.4.1). They must have the authority of their clients for their actions (rule B1.5.1). They must return money promptly as soon as there is no longer any reason to retain it (rule B1.6.11.1). They must not cause or knowingly permit their firms to fail to comply with the rules (rule B6.2.3). The respondent did not comply with these obligations. If a further settlement was anticipated, the funds could have been ordered again.