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Article

15 January 07

Scottish Solicitors' Discipline Tribunal

Reports relating to Martin John Carey; Richard James Barber Hill; James Morrison

Martin John Carey

A complaint was made by the Council of the Law Society of Scotland against Martin John Carey, Scullion & Company, Solicitors, 5 Church Street, Hamilton (“the respondent”). The Tribunal repelled the respondent’s preliminary pleas of mora and personal bar and found the respondent guilty of professional misconduct in cumulo in respect of his unreasonable delay in recording or registering title deeds in favour of his clients, his unreasonable delay in recording or registering standard securities in favour of lenders and his failure to act in accordance with the principles set forth in article 5(e) of the Code of Conduct for Scottish Solicitors 2002 in that he did not communicate effectively with clients. The Tribunal censured the respondent.

The Tribunal did not accept that a letter from the Society should be interpreted as closing matters in connection with this complaint. The Tribunal was of the view that the respondent had not had his position materially altered nor had it been materially prejudiced by the alleged delay. The Tribunal did not consider that the time delay in itself [about two and a quarter years during which the Society was attempting to rectify the conveyancing – Editor] was sufficient to sustain a plea of mora.

The Tribunal was of the view that failure to record deeds timeously amounts to professional misconduct. In this case the respondent’s failures put the various purchasers and lenders at risk and in cumulo amounted to serious and reprehensible conduct as defined in the case of Sharp. The Tribunal noted that when the failures occurred the respondent was under some very considerable health pressures and accepted that the failures to record deeds resulted from these pressures. The Tribunal therefore considered that in the circumstances these failures were at the lower end of the scale of professional misconduct. The Tribunal also took into account the lengthy period of time since these failures occurred and considered that in all the circumstances a fine would not serve any purpose and a lenient penalty was appropriate.

Richard James Barber Hill

A complaint was made by the Council of the Law Society of Scotland against Richard James Barber Hill, solicitor, Messrs Stevenson & Johnstone Solicitors, Bank of Scotland Buildings, Langholm  (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to advise his client to seek independent advice, his acting for two parties in the knowledge that their interests conflicted, and his preparing a document which was adverse to his client’s interest and presenting it to her for her to sign and his failure to advise her to obtain independent legal advice before signing it. The Tribunal censured the respondent and directed in terms of

s 53(5) of the Solicitors (Scotland) Act 1980 that for a period of three years, 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 such employer as may be approved by the Council or the Practising Certificate Committee of the Council of the Law Society of Scotland.

The Tribunal considered that this was a very unfortunate case. The respondent appeared to have had tunnel vision with regard to getting the sale and purchase transactions concluded. After having heard evidence the Tribunal was satisfied, beyond reasonable doubt, that the respondent’s conduct amounted to professional misconduct. The respondent was acting for Mr & Mrs A and he had prepared a document which he took to Mrs A which she signed, giving up rights, the extent of which he did not know. The Tribunal considered that she was not given proper advice by the respondent and she was not able to give informed consent. The respondent also appeared not to be fully familiar with the Law Society’s Guidelines on Acting for Separated Spouses, or the Solicitors (Scotland) Practice Rules in connection with conflict of interest.

The Tribunal took account of the respondent’s long unblemished career in the profession and had sympathy for the respondent, but had to consider the importance of protection of the public. In this case the respondent’s client had suffered actual and substantial prejudice. The Tribunal had to ensure that nothing like this happened again. The Tribunal accordingly imposed a restriction on the respondent’s practising certificate.

James Morrison

A complaint was made by the Council of the Law Society of Scotland against James Morrison, solicitor, 156 Station Road, Shotts (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to honour an undertaking given by him to a fellow solicitor to register a standard security. The Tribunal censured the respondent.

Although the respondent had pled guilty to professional misconduct, the Tribunal had to consider whether the respondent’s conduct was sufficiently serious and reprehensible so as to amount to professional misconduct. Given that the respondent accepted that at the time he did know of the undertaking he gave to Caesar & Howie and given that he did not tell them that he could not record the standard security, the Tribunal found that the respondent’s conduct did amount to professional misconduct. The Tribunal however recognised that the respondent was put in a difficult position due to the instructions he received from his client. The Tribunal considered that the matter fell at the lower end of the scale of professional misconduct and a censure was sufficient penalty.