Scottish Solicitors' Discipline Tribunal
Reports of cases relating to David Eric Sutherland; Brian Travers
David Eric Sutherland
A complaint was made by the Council of the Law Society of Scotland against David Eric Sutherland, solicitor, 10-16 Exchequer Row, Aberdeen (“the respondent”).
The Tribunal found the respondent guilty of professional misconduct between 8 February and 26 May 2008, while representing a client in a court action, in respect of his entering into an agreement to reduce the principal sum sued for to a figure outwith the ordinary court and legal aid levels; his agreeing that his client would be liable for the expenses of a discharged diet of debate; and his proceeding to amend the writ without advising his client that he was doing so and of the consequences of the reduction and his doing so without his client’s instructions; between 26 May and 6 August 2008, while representing his client in the court action, his failing to inform his client that he had amended the principal sum sued for; and between 8 February and 6 August 2008, his failing to inform his client that he had agreed that his client would be liable for expenses of a discharged diet of debate, that a motion had been lodged seeking expenses against the client and there had been awards made against the client for expenses in favour of his opponents, and that his client had been found liable for the expenses of the amendment procedure entered into by the respondent without the client’s instructions.
The Tribunal censured the respondent and fined him in the sum of £1,000.
The Tribunal considered that the respondent’s conduct clearly amounted to professional misconduct. He took steps in a court action which led to an amendment of the pleadings reducing the sum sued for and resulting in an award of expenses against the client without taking his client’s instructions. There was also a serious problem of lack of communication to the client as to what was going on.
The Tribunal accepted that the respondent might well have been right in reducing the sum sued for, but did not consider that this significantly reduced the respondent’s culpability in amending pleadings without his client’s instructions. The Tribunal, however, took account of the fact that the respondent had accepted his culpability from an early stage and had attended the Tribunal and been genuinely contrite with regard to what had happened.
The Tribunal further took into account the fact that his client was not financially disadvantaged and the respondent did not deliberately go into an area that he was not familiar with in order to earn extra income.
The respondent was misguided in continuing to act for the client in respect of a matter where he did not have the necessary expertise, but the Tribunal accepted that at the time he thought it would only be for a short period as he was actively trying to obtain another assistant to replace the one who had left. The Tribunal also considered that the respondent had learned his lesson and that it was extremely unlikely that anything similar would happen again in the future.
A complaint was made by the Council of the Law Society of Scotland against Brian Travers, solicitor, Marshall Wilson Law Group Ltd, 2 High Street, Falkirk (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his delay and failure in implementing a mandate and his failure to provide his business file or files to the Society and failure to provide any explanation as to why the papers had not been produced timeously or otherwise.
The Tribunal censured the respondent.
The Tribunal has held on a number of occasions that failure to respond to the Law Society of Scotland and failure or delay in implementing mandates amounts to professional misconduct. If solicitors do not respond to the Society it hampers the Society in the performance of its statutory duty and is prejudicial to the reputation of the legal profession.
The Tribunal made a finding of misconduct to demonstrate the Tribunal’s continued attempts to require individual members of the profession to respond to their professional body when requests are made of them. Failure to implement a mandate is a breach of a solicitor’s obligations and hampers the new solicitor in implementing a client’s instructions, which in turn is prejudicial to the legal profession.
The Tribunal, however, considered that the respondent’s misconduct in this case fell at the lower end of the scale of professional misconduct and accordingly found that a censure was the appropriate sanction.