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Scottish Solicitors' Discipline Tribunal

20 June 05

Reports relating to John Anthony Lindsay Oliver; James Joseph McGinley; David Baird Macadam; Andrew Robert Walker Miller and Eileen Wingate Morrison; Duncan McKinnon Burd; Thomas Hugh Murray


JOHN ANTHONY LINDSAY OLIVER

A complaint was made by the Council of the Law Society of Scotland against John Anthony Lindsay Oliver, Solicitor, Oliver WS, 13 High Street, Hawick (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to comply with the high standards expected of a solicitor accorded the privilege of the office of notary public by failing to ensure that a power of attorney was properly executed by his client and notarised in the appropriate fashion. The Tribunal censured the respondent and fined him in the sum of £1,000.

Solicitors who become notaries public are in a privileged position. The public and the profession are entitled to the protection that documents, signed on oath before a notary public, have a status greater than ordinary documents, by virtue of the notarisation. It is essential that the notary is present when the deponent signs the document and a solicitor must respect the formalities and not take short cuts. The Tribunal found that the respondent’s conduct fell short of the principles expected and brought the profession into disrepute. The Tribunal however took account of the fact that the respondent had co-operated and had entered into a joint minute and that the matter had been hanging over him for a very long period. There was also no suggestion that there had been any cause for concern in connection with the respondent’s professional practice during the last six years. The Tribunal took account of the references provided and was satisfied that the respondent had learned from this experience. The Tribunal accordingly decided that in the particular circumstances of the case a censure and a fine of £1,000 would be sufficient penalty.

JAMES JOSEPH McGINLEY

A complaint was made by the Council of the Law Society of Scotland against James Joseph McGinley, Solicitor, Reilly McGinley, 57 Ruthven Lane, Glasgow (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his unconscionable delay and at times failure to reply to letters from another firm of solicitors and correspondence from the Law Society of Scotland, and his unconscionable delay in implementing a mandate. The Tribunal censured the respondent and fined him in the sum of £1,000.

The Tribunal has made it clear on numerous occasions that solicitors have a duty to co-operate with the Society and to provide, as soon as practicable, a full and accurate explanation in respect of any matter which is the subject of a complaint. It is also imperative for solicitors to act with fellow solicitors in a manner consistent to persons having mutual trust and confidence in each other. The Tribunal however took account of the difficulties experienced by the respondent in connection with water damage to his offices and also noted that the respondent had co-operated with the Society and entered into a joint minute in respect of the complaint. The respondent had also taken steps to improve the situation by reducing his workload and closing branch offices. The respondent seemed genuinely contrite with regard to his failures. The Tribunal was accordingly satisfied that it was not likely that the respondent’s actions would be a continuing course of conduct and the Tribunal considered that a censure and a fine of £1,000 would be sufficient penalty.

DAVID BAIRD MACADAM

A complaint was made by the Council of the Law Society of Scotland against David Baird Macadam, Solicitor, 26 Kirk Brae, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his presenting to his client for signature a blank form C1 for the purpose of obtaining confirmation, persuading her to sign it and making dishonest representations to her with regard to the state of preparation, contrary to article 7 of the Code of Conduct for Solicitors Holding Practising Certificates issued by the Law Society of Scotland in 1989. The Tribunal censured the respondent and directed in terms of section 53(5) of the Solicitors (Scotland) Act 1980 that 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, and to being supervised by, such employer or successive employers as may be approved by the Council of the Law Society of Scotland or the Practising Certificate Committee of the Council of the Law Society of Scotland and that for an aggregate period of at least five years and thereafter until such time as he satisfies the Tribunal that he is fit to hold a full practising certificate.

The tribunal was very concerned by the respondent’s actions. A form C1 is a formal document which allows confirmation to be granted in relation to the estate of a deceased. It is presented to the court and an executor makes a formal declaration in respect of the estate when signing the form. It is essential that any solicitor who presents to an executor a form C1 for signature should request the executor to consider the terms of the inventory form in detail and obtain an assurance from the executor that they find it to be in order before inviting the executor to sign. In this case the respondent persuaded the executor to sign a blank form by telling her that he had all the information required to complete the form when this was not so. It is imperative if the public are to have faith in the legal profession that solicitors deal with these important forms in a proper and honest manner. The Tribunal considered that in order to protect the public interest there would require to be a restriction on the respondent’s practising certificate. The Tribunal imposed the restriction for an aggregate period of at least five years and at the end of this period it will be for the respondent to come back to the Tribunal, if he so wishes, to show that he has gained the necessary maturity and experience to be able to operate with a full practising certificate.

ANDREW ROBERT WALKER MILLER AND EILEEN WINGATE MORRISON

A complaint was made by the Council of the Law Society of Scotland against Andrew Robert Walker Millar, Solicitor, Bank House, 1 Stirling Street, Dundee (“the first named respondent”) and Eileen Wingate Morrison, Solicitor, Briardeane, Aytounhill, Newburgh (“the second named respondent”). The Tribunal found the first named respondent guilty of professional misconduct in respect of his fraudulently completing withdrawal forms which were received from financial institutions by appending thereto the signature of an executor, fraudulently completing a withdrawal form by alleging that he witnessed the signature of an executor and thereafter returning these withdrawal forms which he knew to be dishonestly completed to the financial institutions involved uttering them as genuine; and found the second named respondent guilty of professional misconduct in respect of her failure adequately to supervise and have regard to the work being carried out by the first named respondent who at the time was employed by her in the capacity of an assistant. The Tribunal ordered that the name of the first named respondent be struck off the Roll of Solicitors in Scotland and censured the second named respondent.

The first named respondent acted in a dishonest fashion by fraudulently completing withdrawal forms from financial institutions and forged the signature of an executor on five occasions. He thereafter uttered these as genuine to the financial institutions and also acted in a dishonest fashion by purportedly witnessing the forged signature which he had appended to the form delivered by Allied Dunbar PLC. The Tribunal considered that the first named respondent’s conduct amounted to criminal behaviour and was regrettably disgraceful and dishonourable. The public are entitled to expect solicitors to be persons of integrity. The Tribunal noted that there had been no financial gain to the first named respondent and that he had entered into a joint minute. However, given that the first named respondent had deliberately forged the signature on five occasions without having made any attempt to contact the executor with regard to the executry, the Tribunal felt that there was no place in the solicitors’ profession for someone who would act in this way and had no option but to strike the first named respondent’s name from the Roll of Solicitors in Scotland.

In connection with the second named respondent the Tribunal considered that she should have paid more attention to the correspondence, especially when she was aware that there was animosity between the executor and the first named respondent. It was however clear that the second named respondent was placed in a difficult situation and was carrying out some level of supervision. The Tribunal accepted that the second named respondent had no reason to suspect that the first named respondent would be forging an executor’s signature. It was clear that the second named respondent was now working competently as an assistant and there was no reason to think that there would be any likelihood of anything similar happening in future. The Tribunal accordingly considered a censure to be a sufficient penalty.

DUNCAN McKINNON BURD

A complaint was made by the Council of the Law Society of Scotland against Duncan McKinnon Burd, Solicitor, MacDonald House, Somerled Square, Portree, Isle of Skye (“the respondent”). The Tribunal made no finding of professional misconduct against the respondent but found the respondent liable in one half of the expenses of the complainers and one half of the expenses of the Tribunal.

The Tribunal heard evidence and submissions from both parties. The Tribunal accepted that there was a long established practice of using nominee provisions in missives in certain situations and was of the view that there is nothing wrong with this in principle. The Tribunal also accepted that the identity of the nominee may not be revealed in some circumstances until after the conclusion of the missives. However in this case the nominee provision was used in order to disguise the identity of the purchaser and it was known that if the offer had been in the name of the purchaser it would not have been accepted. The Tribunal looked at the whole course of conduct of the respondent and his intent. The respondent’s actings did result in the seller assuming that the respondent was the purchaser of the property on his own behalf. The seller had, however, been legally represented and her solicitor had apparently explained the implications of the nominee clause to her but she had not understood it. The Tribunal accordingly did not find that the respondent’s conduct was so serious and reprehensible so as to amount to professional misconduct. The Tribunal however would wish to disassociate itself from the respondent’s conduct and considered that it was not wise for the respondent to use his own name as nominee in the circumstances. The Tribunal considered that the respondent’s actings amounted to unprofessional conduct. The Tribunal also considered that the Society had had no alternative but to prosecute and had been fully justified in taking the complaint to the Tribunal. As the respondent’s conduct had fallen very narrowly short of professional misconduct the Tribunal found the respondent liable in 50% of the expenses of the complainers and the Tribunal.

THOMAS HUGH MURRAY

A complaint was made by the Council of the Law Society of Scotland against Thomas Hugh Murray, Solicitor, 100 Pendeen Road, Glasgow (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his deceiving his client by transferring a sum of money received from his client immediately to the firm account without having carried out the work as agreed between him and his client and without issuing his client with a fee note and without, at that time, making payment of, or making any provision for monies due in respect of the VAT element on the purported fee, all contrary to article 7 of the Code of Conduct for Solicitors Holding Practising Certificates issued by the Law Society in 1989 and contrary to rule 6 of the Solicitors (Scotland) Accounts Rules 1997. The Tribunal censured the respondent and directed in terms of section 53(5) of the Solicitors (Scotland) Act 1980 that any practising certificate held or to be issued to the respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer or successive employers as may be approved by the Council of the Law Society of Scotland and that for an aggregate period of three years.

After hearing evidence the Tribunal found the respondent guilty of professional misconduct. The Tribunal was satisfied beyond reasonable doubt that the respondent had deceived his client by taking fees contrary to the basis on which he persuaded the client to give him the money as set out in a letter to the client. The essential qualities of a solicitor are honesty, truthfulness and integrity and a solicitor who falls short of this brings the legal profession into disrepute. The respondent’s deceit of his client was serious and reprehensible. The Tribunal however noted that the respondent’s client had not been out of pocket in the case and it was clear that the respondent had already done some work by the time he took money to fees. The Tribunal was of the view that the respondent required supervision in order to gain the necessary guidance and experience prior to being able to work again as a sole practitioner. The Tribunal felt that a restriction on his practising certificate was the best way of ensuring protection of the public.