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Scottish Solicitors' Discipline Tribunal

12 December 11

Reports of cases relating to Paul Saunders Jardine and Gordon Alexander Phillips; Annaline Webster; Ms A

Paul Saunders Jardine and Gordon Alexander Phillips

A complaint was made by the Council of the Law Society of Scotland against (first) Paul Saunders Jardine and (second) Gordon Alexander Phillips, of Jardine Phillips LLP, Edinburgh.

The Tribunal found the respondents guilty of professional misconduct in respect of their breach and/or failure to follow the Code of Conduct for Scottish Solicitors 2002, rules 2, 7 and 9; breach of the Solicitors (Scotland) (Advertising and Promotion) Practice Rules 2006, rule 4; failure to follow the Society’s guidance on mandates; and in relation to their actings at the time of the dissolution of a partnership, in that they redirected firm mail without the knowledge and consent of their partner and misrepresented the position regarding their partner’s practice to a number of organisations.

The Tribunal censured both respondents and fined them £5,000 each.

Although a joint minute had been lodged admitting the facts and averments in the complaint, evidence was led in a proof in mitigation. The Tribunal found the respondents to be genuinely credible witnesses. The Tribunal did not consider that the respondents were guilty of professional misconduct in respect of a breach of rule 3 of the Solicitors (Scotland) (Incorporated Practices) Practice Rules 2001, as there was no evidence of client-centred activity such as a meeting with clients or taking instructions, and it could not be concluded that trading had commenced.

The Tribunal, however, was satisfied that the respondents were guilty of the remaining breaches of their professional obligations as averred. The Tribunal took account of the fact that the respondents’ behaviour had been devious towards their partner in the run-up to the dissolution of Guild & Guild, and that documents and files were removed from Guild & Guild’s offices without client consent. The Tribunal also noted that mail was redirected to the respondents’ new offices and that the respondents issued circulars to clients which did not comply with the guidance on mandates and gave no indication that their partner was continuing in business. They also advised important parties that their partner was not practising when they knew this to be untrue.

The Tribunal, however, took into account the advice the respondents were given by the experienced solicitor they had instructed. The Tribunal had grave concerns about the apparent inaccuracy of this advice. It considered that the respondents should have acted on the doubts they both had that what they were doing was not in accordance with the rules of their professional body, by which they were bound. The Tribunal, however, took into account that the respondents acted quickly in returning all the documentation and therefore the inconvenience to clients was minimal. It also noted that both respondents had previously unblemished records in the profession, and accordingly considered that a censure and fine of £5,000 for each respondent was the appropriate penalty.

Annaline Webster

A complaint was made by the Council of the Law Society of Scotland against Annaline Webster, independent qualified conveyancer, Cupar. The Tribunal found the respondent guilty of professional misconduct in respect of her acting in a conflict of interest situation in breach of rule 9 of the Independent Qualified Conveyancers (Scotland) Regulations 1997 and her failure to cease to act or provide written notification and written agreement required by rules 10 and 11 of those regulations.

The Tribunal censured the respondent and fined her in the sum of £500.

The respondent acted in connection with the transfer of a property in joint names of two clients into the name of one client alone. The Tribunal accepted that at the time there was nothing to alert the respondent to the fact that an actual conflict might arise. The respondent was, however, bound by the terms of rules 9, 10 and 11 and should have known that she should not act in these circumstances.

Ms A

A complaint was made by the Council of the Law Society of Scotland against Ms A, solicitor. The Tribunal found the respondent guilty of professional misconduct in respect of her appearing before a sheriff in an unfit state to conduct appeal proceedings on behalf of her clients, failing to act in the best interests of her clients, and failing to accord the court due respect and courtesy.

The Tribunal censured the respondent. On the agreed facts it was clear that the respondent was suffering from flu and had taken medication, and this together with wine that she had consumed at lunchtime resulted in her being unfit to appear on behalf of her clients in court. She was staggering, unsteady on her feet and addressed the sheriff in a confused and rambling manner. It appeared to all present that she was drunk.

The case involved children and the Tribunal considered that the respondent continuing to represent her clients when she was in this state was clearly conduct capable of bringing the profession into disrepute. The respondent must have realised going into court that she was not fit to appear. She had a professional responsibility and duty not to continue when she was unfit. It is essential that solicitors maintain certain standards of conduct. The public expect solicitors to act in their clients’ best interests and maintain due respect and courtesy towards the court. The respondent’s conduct fell short of these standards.

Website: www.ssdt.org.uk

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