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Scottish Solicitors' Discipline Tribunal

18 September 06

Reports relating to Messrs Robertson & Ross; Nicholas Gerard McCormick; William Pirie Rennie; Ronald McKenzie; Alistair Ogston Robertson

Appeal under section 42A: Messrs Robertson & Ross, Solicitors

An appeal under section 42A was lodged with the Scottish Solicitors Discipline Tribunal by Messrs Robertson & Ross, Solicitors,

7 Causeyside Street, Paisley (“the appellants”). The Tribunal considered the appeal against the determination and direction made in connection with a finding of inadequate professional service by the Council of the Law Society of Scotland. The Tribunal varied the determination and direction and directed that the appellants pay the sum of £500 by way of compensation to their client and that the appellants refund to the Scottish Legal Aid Board, their fees to the extent only of £500. The Tribunal was of the view that some variation of the determination and direction made by the Society was appropriate. The Tribunal disagreed with the reporter’s conclusions in relation to the findings of delay in relation to the recovery of the productions and delay in instructing senior counsel. The Tribunal accordingly reduced the amount that the appellants had to repay to the Scottish Legal Aid Board. The appellants in this case did not challenge the finding that an inadequate professional service had been provided.

Nicholas Gerard McCormick

A complaint was made by the Council of the Law Society of Scotland against Nicholas Gerard McCormick, solicitor, 28 Victoria Street, Newton Stewart (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to communicate with clients, his failure to reply to correspondence from the Society and failure to obtemper statutory notices, his unconscionable delay in implementation of a mandate and failure to implement another mandate, his failure to deal with a cheque from a university in connection with administration of an estate and failure to pass that cheque on to a firm of solicitors, his sending of a fax purporting to enclose executry papers and failure thereafter to send either the principal letter or the executry papers, his failure in dealing properly with the administration of an estate, his failure timeously to record deeds at the settlement of conveyancing transactions, his breach of rules 4, 6, 8, 9 and 11 of the Solicitors (Scotland) Accounts etc Rules 2001, his charging an excessive fee and having had that brought to his attention, failing to refund the amount overcharged to the client and his using funds from his general client account to settle the claim of his former client. The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland. The Tribunal also directed that orders be issued under s 53C(2) of the Solicitors (Scotland) Act 1980.

The Tribunal was extremely concerned by the respondent’s conduct. Although the Tribunal accepted that there was no dishonesty involved, the Tribunal considered that the respondent’s persistent pattern of behaviour over a number of years, despite matters being brought to his attention, meant that he was unfit to practise as a solicitor. The public has a right to expect a certain standard of conduct from a solicitor. In this case the respondent failed to communicate effectively with clients and the Society, breached the Accounts Rules, delayed in recording deeds and failed in other professional obligations. He did this over a long period of time and despite various Law Society of Scotland inspections and previous appearances before the Tribunal. The Tribunal was particularly concerned that on the last occasion when the respondent appeared before the Tribunal he indicated that he had introduced systems which would ensure that deeds were recorded on time and that he did not breach the Accounts Rules. Despite this the respondent committed further breaches of the Accounts Rules and there were further delays in the recording of deeds. The respondent also indicated to the Tribunal on the previous occasion that he had answered all the Society’s queries, and this appeared to be untrue. The Tribunal considered that the respondent was no longer a fit and proper person to remain on the Roll of Solicitors in Scotland. The Tribunal was also satisfied that the respondent had failed to comply with determinations and directions made by the Society and considered it appropriate to make orders under

s 53C(2) of the Solicitors (Scotland) Act 1980.

William Pirie Rennie

A complaint was made by the Council of the Law Society of Scotland against William Pirie Rennie, solicitor,

4 Beaufield Gardens, Kilmaurs, Kilmarnock (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his unconscionable delay and ultimate failure in the administration of an estate and his unreasonable delay and ultimate failure to respond to the reasonable enquiries made of him and notices served on him by the Society. The Tribunal censured the respondent and directed in terms of s 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 or the Practising Certificate Committee of the Council of the Law Society of Scotland and that for an aggregate period of three years.

In this case the respondent indicated that he had little comment to make and could not remember the individual cases and the complainers led affidavit evidence from four witnesses. It was clear from the affidavit evidence that the respondent’s client had been caused a great deal of stress and inconvenience. There is a duty on a solicitor to take reasonable steps to undertake the business of his client and to keep his client informed. In this case, not only did the respondent fail to expedite the business diligently and without delay, but he also failed to respond to his client’s enquiries. The respondent further failed to respond to the Society when his client invoked their assistance. The Tribunal took account of the fact that the respondent had been under particular pressures at the time and accepted that the respondent’s actions and omissions were not deliberate, but it was clear that the respondent was not coping as a sole practitioner. The Tribunal accordingly considered that in order to protect the public it was necessary for a restriction to be placed on the respondent’s practising certificate. The Tribunal further considered it imperative that the respondent work under supervision for a period of three years prior to being able to work again as a principal in private practice.

Ronald McKenzie

A complaint was made by the Council of the Law Society of Scotland against Ronald McKenzie, solicitor, c/o Legal Direct, PO Box 642, Dundee (“the respondent”). The Tribunal found the respondent not guilty of professional misconduct.

In this case a joint minute was lodged admitting the facts, averments of duty and averments of professional misconduct. The Tribunal however had to consider whether or not it was satisfied that the respondent’s conduct was serious and reprehensible enough to amount to professional misconduct. In this case there was a single instance of failure on the part of the respondent to carry out an item of work. There were no averments in the complaint that the client had complained about the delay and no averments that the respondent had misled his client by indicating, in response to a query from his client, that he had been doing work when he had not. The Tribunal accepted that it was unsatisfactory that the respondent received money from his client to do work which he did not do for a period of one year. The Tribunal however, in the circumstances, was not satisfied that the respondent’s delay was not inadvertent. If the delay was caused by inadvertence the omission was not professional misconduct. The Tribunal however found the respondent’s conduct to be unsatisfactory. The Tribunal considered that the respondent had no-one but himself to blame for having been charged with professional misconduct and accordingly the Tribunal resolved that there should be no liability for expenses due to or by either party.

Alistair Ogston Robertson

A complaint was made by the Council of the Law Society of Scotland against Alistair Ogston Robertson, solicitor, Messrs Burnett & Reid, Solicitors, 15 Golden Square, Aberdeen (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his failure to reply timeously, openly and accurately to the reasonable enquiries made of him by the Society. The Tribunal censured the respondent.

The Tribunal, by a majority decision, was satisfied beyond reasonable doubt that the respondent’s actings amounted to professional misconduct. The Tribunal was concerned with regard to the catalogue of the respondent’s failure to reply over a period of time. The Tribunal however took account of the difficulties faced by the respondent and his firm at this particular time and considered it was unlikely that the respondent would allow himself to get into such difficulties again. The Tribunal considered that a censure was a sufficient penalty.