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Scottish Solicitors' Discipline Tribunal

19 October 09

Reports relating to Norman James Cowie; John Davidson; Martin Ramsay Longmuir; John Rankine Smith

Norman James Cowie

 

A complaint was made by the Council of the Law Society of Scotland against Norman James Cowie, formerly of Cowie & Co, Cowdenbeath, Fife (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his failure to respond timeously, openly and accurately to the reasonable enquiries made of him by the Society; his failure to respond to statutory notices served upon him by the Society; his failure and unreasonable delay in recording or registering title deeds; his breach of article 9 of the Code of Conduct for Scottish Solicitors 2002 by failing to deliver conveyancing deeds in terms of a formal undertaking issued by him despite receiving repeated requests for him to implement his undertaking; and his breach of rule 5 of the Solicitors (Scotland) Practice Rules 1986 in relation to acting for both parties in a sale and purchase of a heritable property in that he did not write to the parties explaining the position to them as quickly as he ought.

 

 

The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland.

 

The Tribunal also found that the respondent had failed to comply with 16 determinations and directions made by the Society in respect of inadequate professional service, and directed that 16 orders under s 53C of the Solicitors (Scotland) Act 1980 be issued.

 

The Tribunal considered that the respondent was well aware that the Society has a duty to investigate any complaint regarding the conduct of a solicitor and that solicitors have a duty to respond to the enquiries made by the Society in this regard. Failure to respond to the Society prevents the Society from properly investigating complaints and can bring the whole profession into disrepute. The Tribunal also considered that a solicitor acting on behalf of a client in connection with a conveyancing transaction has a duty to prepare deeds to record or have these registered within a reasonable time. The Tribunal was aware that until a deed is recorded or registered the client is not infeft in the property and their title is placed at risk and that similarly any security in favour of a lender is also at risk until the deeds are recorded. The Tribunal noted that the respondent also failed in his duty to comply with the formal undertaking which he gave to a fellow solicitor. The Tribunal considered that a solicitor must be able to trust a formal undertaking given by another solicitor as the Scottish system of conveyancing relies to a great extent upon the issuing of formal letters of obligation. Such undertakings should not be granted lightly or ignored. The Tribunal considered that by failing to comply with this undertaking and by ignoring repeated reminders both from the solicitors involved and from the Society, the respondent acted in a manner which has adversely affected the reputation of the profession.

 

 

The Tribunal was greatly concerned that the respondent had failed to respond in any way to a large volume of correspondence sent by the Society in relation to a large number of separate complaints over a period of four years, and had also ignored all correspondence sent by the clerk to the Tribunal and had not attended the hearing or put forward any explanation for his failures. The Tribunal noted that in relation to the failures to register deeds and to implement the letter of obligation the respondent had been given numerous opportunities to rectify matters but had continued to ignore all reminders and enquires from his fellow solicitors and from the Society. For these reasons the Tribunal was of the view that the appropriate sanction was to order that the name of the respondent be struck off the Roll of Solicitors in Scotland.

 

John Davidson

 

Two complaints were made by the Council of the Law Society of Scotland against John Davidson, solicitor, Ivybank House, 22 Forrest Street, Airdrie (“the respondent”). The Tribunal found the respondent guilty of professional misconduct singly and in cumulo in respect of his acting on behalf of a client in a situation in which there was a conflict of interest between his own interests and those of his client; his failure to advise his client to seek independent legal advice; his breach of the requirements of article 7 of the Code of Conduct for Scottish Solicitors promulgated in 2002 by acting in a dishonest fashion; his breach of s 23 of the Solicitors (Scotland) Act 1980 by practi

sing as a solicitor or holding himself out as entitled by law to practise as a solicitor without having a current practising certificate; his breach of s 32 of the Solicitors (Scotland) Act 1980 by preparing an application for a grant of confirmation in favour of executors when he was unqualified to do so by virtue of not having a practising certificate; his acting in a situation in which he had neither a practising certificate nor professional indemnity insurance; his failure to respond to correspondence from the Society; his attempt to mislead the Society in relation to his client’s attitude to the complaint; and his failure to obtemper statutory notices served on him by the Society.

The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland. The Tribunal also found that the respondent had failed to comply with the determination and direction given by the Society within the period specified and directed that an order be issued under s 53C of the Solicitors (Scotland) Act 1980.

The respondent did not lodge answers to the complaint or attend the hearing. The Tribunal heard evidence and was satisfied beyond reasonable doubt that the respondent was guilty of professional misconduct. The Tribunal considered that the cumulative effect of the respondent’s failures was very serious. The respondent had acted in an obvious conflict of interest situation to procure personal gain and in doing so had passed himself off as a practising solicitor when he was well aware that he was not. In this case a member of the public with no previous connection to the respondent was specifically targeted and the respondent used his position as a solicitor to attempt to gain this person’s trust and defraud them. The Tribunal considered that this course of conduct was clearly premeditated. The Tribunal took account of the doctor’s letter received but noted that no explanation had been put forward by the respondent for his actions. The Tribunal accordingly concluded that the respondent was not a fit and proper person to remain on the Roll of Solicitors in Scotland.

Martin Ramsay Longmuir

A complaint was made by the Council of the Law Society of Scotland against Martin Ramsay Longmuir, formerly trading as Longmuir & Co, 93 Hope Street, Glasgow (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his having a shortage on his client account of at least £33,800 from July 2003 until September 2006 in breach of rule 4 of the Solicitors (Scotland) Accounts etc Rules 2001, his breach of rules 8, 11 and 24 of the said Accounts Rules and his failure to submit terms of business letters in terms of rule 3 of the Solicitors (Scotland) (Client Communications) Practice Rules 2005.

The Tribunal suspended the respondent from practice for a period of seven years.

The Tribunal was very concerned that there was a deficit on the respondent’s client account for a three year period. The Tribunal considered that it was a prolonged and gross dereliction of responsibility for the respondent to continue in practice with a large deficit for three years. Solicitors have an obligation to confirm the propriety of their accounts to the Society on a regular basis. In this case, the respondent seemed to have a complete disregard for the Accounts Rules. No explanation with regard to this was provided. The Tribunal also noted that the shortage had still not been resolved. The Tribunal also noted that although the respondent by this time only had a small client base, there were a lot of incidences of failure to issue terms of business letters, failure to invest client funds and failure to comply with the Money Laundering Regulations. The Tribunal found that the respondent’s method of operating was completely unacceptable and considered that a seven year suspension was appropriate.

John Rankine Smith

A complaint was made by the Council of the Law Society of Scotland against John Rankine Smith, solicitor, Messrs A F & C D Smith, Solicitors, 30 Harbour Street, Stranraer (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his unconscionable delay and failure to complete the administration of an estate between January 2004 and August 2006, having previously delayed unreasonably in the administration of the said estate between 1993 and 2003. The Tribunal censured the respondent.

The Tribunal considered that this was a very borderline case. The solicitor was caught in the crossfire between two brothers who had fallen out. It was not in the respondent’s power to sort this matter out and this fallout was what contributed significantly to the delay in finalising the executry. There was no evidence that the respondent made contact with the executors with regard to the difficulties that he was having. The Tribunal had a great deal of sympathy for the position that the respondent found himself in but noted that the respondent accepted that he had not dealt with matters properly. It is the duty of a solicitor undertaking the administration of an executry to deal diligently with the estate and bring it to completion within a reasonable time. There was a clear delay between January 2004 and August 2006 and this taken in the context of the previous delay between 1993 and 2003, taken together with the respondent’s failure to respond to letters and phone calls, resulted in a finding of professional misconduct. The Tribunal however considered that the respondent’s conduct fell at the very lowest end of the scale of professional misconduct and did not consider that anything other than a censure would be an appropriate sanction.

 

 

 

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