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Scottish Solicitors' Discipline Tribunal

19 March 07

Reports relating to Finlay Park; Robert Thomas; Nigel Stephen Kenny; Alistair Iain MacDonald; John Nigel Ferguson Muir

Finlay Park

A complaint was made by the Council of the Law Society of Scotland against Finlay Park, solicitor, formerly of Messrs Park Hutchison, Solicitors, Glasgow, presently residing at Flat 1/2, 5 Arcan Crescent, Drumchapel, Glasgow (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his persistent failure to provide timeous responses to correspondence from the Law Society of Scotland, his persistent failure to obtemper statutory notices, his misrepresentation of the status of court proceedings to English agents and his persistent failure to provide adequate services to his clients. 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 to be 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, 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 considered that the catalogue of instances of poor quality service over a period of time clearly amounted to a dereliction of professional duty and was sufficient to amount to professional misconduct. A substantial number of the respondent’s clients suffered as a result of his failures. The respondent’s failure to reply also hampered the Society in the performance of its statutory duty. The Tribunal however took into account that the respondent was suffering from depression at the time and that this had been caused by problems in his personal life which resulted in him being unable to cope with his professional work. The Tribunal also took account of the fact that the respondent had co-operated by entering into a joint minute and that the matter had been outstanding for a long time. The Tribunal however considered that in order to protect the public it was necessary to impose a restriction on the respondent’s practising certificate. The Tribunal imposed this for an aggregate period of five years as it was considered that it was necessary for the respondent to work under supervision for a five year period and at the end of that period he will require to show the Tribunal that he is fit to practise on an unsupervised basis.

Robert Thomas

A complaint was made by the Council of the Law Society of Scotland against Robert Thomas, solicitor of Messrs Robert Thomas and Caplan, Solicitors, 365 Victoria Road, Glasgow (“the respondent”).

A preliminary plea of res judicata was intimated on behalf of the respondent. The Tribunal dealt with this plea at a preliminary hearing on 2 December 2004. The Tribunal dismissed the respondent’s preliminary plea and adjourned the hearing of the complaint to a future date to be fixed.

The Tribunal found that although there had been a previous proper determination in respect that the respondent had a no case to answer submission upheld at his criminal trial, the parties in the proceedings before the Tribunal were not identical. The Tribunal also considered that although the subject matter of the two actions was similar there might be different issues arising from the evidence. The Tribunal also considered that the remedy sought at the Tribunal was markedly different from that sought in court. The Tribunal accordingly found that the test necessary to substantiate a plea of res judicata was not met and the plea was repelled. This decision was appealed to the Court of Session which upheld the Tribunal’s decision.

Thereafter at a substantive hearing the Tribunal found the respondent guilty of professional misconduct in respect of his conduct not being in accordance with the principles set out in the articles of the Law Society’s Code of Conduct for Solicitors Holding Practising Certificates, in particular article 5(a) of that Code, in that he assisted a client to dispose of assets which the Crown was seeking to confiscate as being the alleged proceeds of crime. The Tribunal censured the respondent, fined him in the sum of £5,000 and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that with effect from 23 June 2006 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 be 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 for a period of five years.

Having regard to the terms of the amended complaint, the productions and the submissions made by both parties the Tribunal found the respondent guilty of professional misconduct. The Tribunal took the view that any solicitor going to see a client in prison would ask the reason why he was in custody. The Tribunal considered that a solicitor in these circumstances must have thought that what he was being asked to do was attempting to assist someone in the commission of a crime and therefore must amount to professional misconduct in terms of the Sharp test.

The Tribunal considered that this was a grave offence in that the respondent proceeded either with the knowledge of what he was doing or with recklessness as to the consequences. The Tribunal was of the view that for a solicitor to attempt to assist a client to commit a criminal offence is extremely reprehensible conduct. Against this background the Tribunal considered that the sentence imposed reflected the serious view which it took of the matter.

Nigel Stephen Kenny

A complaint was made by the Council of the Law Society of Scotland against Nigel Stephen Kenny of Kenny & Associates, Solicitors, 22 Castle Street, Dumfries (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his breach of rules 8, 9, 10, 11, and 24 of the Solicitors (Scotland) Accounts etc Rules 2001, his repeatedly acting in breach of the Accounts Rules despite his shortcomings being brought to his attention and his unreasonable delay in recording and registering dispositions and standard securities and discharges. The Tribunal censured the respondent, fined him in the sum of £2,000 to be forfeit to Her Majesty and directed in terms of s 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, 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 at least seven years.

The Tribunal was concerned by the number of breaches of the Accounts Rules and the delay in recording of deeds over a period of time. It is imperative that solicitors deal with conveyancing in a proper manner to ensure that the interest of clients and lenders are safeguarded. It is also essential that solicitors should have regard to the obligations expected of them in terms of the Accounts Rules. The respondent was clearly not coping with running his own practice. The Tribunal however took account of the references lodged and the obvious support for the respondent from the local faculty. The Tribunal also took account of the fact that the respondent had voluntarily given up his practice and had realised that he was unable to continue. It was clear that the respondent required to work under supervision and the Tribunal felt it was necessary to restrict his practising certificate in order to ensure protection of the public. The Tribunal ordered a restriction for an aggregate period of seven years to ensure that the respondent works under supervision for a seven year period prior to being able to apply again for a full practising certificate. Given the number of breaches of the Accounts Rules and delay in recording deeds, the Tribunal also imposed a fine of £2,000.

Alistair Iain MacDonald

A complaint was made by the Council of the Law Society of Scotland against Alistair Iain MacDonald, solicitor, 16 Cameron March, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure between May 2000 and October 2002 to obtain and record or register a valid title on behalf of his clients in respect of a property purchased by them, his failure between May 2000 and August 2001 to look after the interests of the Halifax Plc by banking loan funds without having recorded or registered a valid standard security in their favour, and his failure between August 2001 and October 2002 to look after the interests of the Royal Bank of Scotland Ltd by cashing their loan cheque without having recorded or registered a valid standard security in their favour, his repeated failure to reply to correspondence from fellow solicitors or to implement a mandate sent to him by them, his repeated failure to respond to the reasonable requests of the Society for information and his repeated failure to respond to correspondence from another firm of solicitors. The Tribunal censured the respondent and fined him in the sum of £2,500 to be forfeit to Her Majesty.

The Tribunal considered that the respondent’s conduct clearly amounted to professional misconduct. A solicitor acting for a lender has a duty to record or register a standard security in favour of a lender within a reasonable time after cashing a loan cheque. In this case the respondent was unable to do this and the lender remained unprotected. The respondent did not make any attempt to explain the situation to the lenders and the Tribunal was concerned by his cavalier attitude to this. The respondent also failed to respond to fellow solicitors and the Society and failed to implement a mandate. These matters were analogous to the issues in the previous cases dealt with by the Tribunal. The Tribunal however noted that these matters all arose from the same time period. The Tribunal noted that the respondent already had a restriction on his practising certificate and did not consider it necessary to extend the period of his restriction. However taking into account all the matters in the complaint and the previous findings of misconduct, the Tribunal considered that a censure alone would not be sufficient penalty and accordingly imposed a censure plus a fine of £2,500.

John Nigel Ferguson Muir

A complaint was made by the Council of the Law Society of Scotland against John Nigel Ferguson Muir, 24 Roseburn Terrace, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his failure to respond to correspondence relating to outstanding fee notes from an expert witness instructed by him, his unreasonable delay in settling the fee notes of that expert witness, his persistent failure to respond to correspondence from the Society and his failure to timeously obtemper a statutory notice from the Society. The Tribunal censured the respondent.

Having considered the circumstances of the case, the documentation produced and the submissions made, the Tribunal was of the view that in this case the professional misconduct was at the very lower end of the scale. The Tribunal noted that this was a one-off incident arising from a particular set of circumstances and that the respondent had voluntarily left the profession. The Tribunal considered that a censure would be sufficient penalty.