Scottish Solicitors' Discipline Tribunal
Reports of cases relating to John Gerard O'Donnell; James Brophy; Mark Victor Michie; Kevin Wallace Alexander Davidson
John Gerard O’Donnell
A complaint was made by the Council of the Law Society of Scotland against John Gerard O’Donnell, solicitor, Glasgow. The respondent intimated preliminary pleas to the effect (1)that the Society was personally barred from proceeding; (2) that a reference in the complaint to his practising certificate being restricted for a period of five years was prejudicial to the hearing because the Tribunal would be aware that he had previous convictions; (3) that as the two legal members of the sitting Tribunal had been nominated by the Society, there was potential prejudice due to a connection with the Society.
After hearing evidence the Tribunal, repelling the first plea, found on balance of probabilities that it was likely that a conversation took place between the fiscal and respondent with regard to no further proceedings being likely in the event that the respondent was struck off. The Tribunal further considered that even if the fiscal had indicated that if the respondent signed the joint minute he would not be hearing from her again, this would not amount to a declaration of relinquishment or discharge of the right to prosecute by the Society.
In relation to the second plea, given that some of the allegations in the complaint related to the respondent holding himself out as being a partner when he was subject to a restriction on his practising certificate imposed by a previous Tribunal, the Tribunal considered that it was necessary in order for the Society to prove this aspect of the case that information be provided regarding the restriction. It accordingly repelled this plea.
Repelling the third plea, the Tribunal considered that by being a member of the Society the respondent accepted the terms set out by the Society which include regulation and the process of the Tribunal. The Tribunal is constituted under the Solicitors (Scotland) Act 1980 and the Tribunal considered that it was properly constituted under the relevant legislation and rules. The Society recommended solicitors for appointment, but solicitors were appointed by the Lord President and were not paid. The Tribunal accordingly saw no merit in the respondent’s argument.
A complaint was made by the Council of the Law Society of Scotland against James Gerard Brophy, solicitor, Falkirk. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his failure or unconscionable delay in responding to reasonable requests from solicitors he had instructed as his Edinburgh agents for information regarding the status of legal aid applications and the settlement of their accounts, and in settling accounts received from that firm. The Tribunal censured the respondent.
The Tribunal noted that there had been lengthy delays by the respondent in responding to his agents’ reasonable requests for information regarding four cases, and a lengthy delay or failure to settle fees due to those agents from monies received from the Legal Aid Board in two cases. However, the respondent was replying to other matters referred to in the correspondence and dealing with the cases. The Tribunal took into account that no members of the public suffered as a result of the respondent’s delays and noted that all outstanding monies were paid prior to the complaint being served. The respondent had appeared before the Tribunal, had candidly admitted his failures and had shown a keenness to have the matter resolved. The Tribunal considered that the respondent’s failure was at the lower end of the scale of professional misconduct.
Mark Victor Michie
A complaint was made by the Council of the Law Society of Scotland against Mark Victor Michie, solicitor, Aberdeen. The Tribunal found the respondent guilty of professional misconduct in respect of his providing advice to clients which (1) did not accord with the ethical standards of the profession; and (2) amounted to a clear breach of the Society’s guidance on mandates.
The Tribunal struck the name of the respondent off the Roll of Solicitors in Scotland.
The Tribunal noted that the advice given by the respondent ultimately led to a series of events which gave rise to a huge potential for clients to be put at risk. It noted that an email sent by the respondent in January 2006 was written in the most unprofessional terms, and considered that its content amounted to advice to act in a way which did not accord with the ethical standards of his profession and amounted to a very serious breach of the well established guidance on mandates.
The Tribunal considered that the respondent’s actions amounted to a serious and reprehensible departure from the standards expected of competent and reputable solicitors, and concluded that his conduct was of a kind which could bring the profession into disrepute and therefore constituted professional misconduct. In its opinion this was not a simple error of omission but was such seriously flawed advice from an experienced solicitor that it demonstrated a willingness to encourage other professionals to ignore the law and the rules of their professional body for their own commercial gain. The advice was not acted on by the clients for some months, during which period the respondent continued to advise his clients. He therefore had plenty of time to reflect on the advice given and its appropriateness or otherwise. The advice was never changed and the strategy was embarked on by his clients with his continued assistance. The Tribunal concluded that the provision of such advice to clients to carry out acts which were tantamount to theft was behaviour which demonstrated a clear lack of comprehension by the respondent of his professional responsibilities and was therefore inconsistent with being a solicitor. For these reasons the Tribunal concluded that the respondent was not a fit and proper person to remain as a solicitor and ordered that his name be struck off the Roll of Solicitors in Scotland.
The respondent appealed to the Court of Session but the appeal was refused on 6 January 2012.
Kevin Wallace Alexander Davidson
A complaint was made by the Council of the Law Society of Scotland against Kevin Wallace Alexander Davidson of K.W.A.D., solicitors, Aberdeen. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his failure to adequately supervise the conduct of employees involved in conveyancing transactions in which they presented to lenders, for whom they were acting, inaccurate, incorrect and misleading information which subsequently led to the financial gain of the (borrower) client of the respondent’s firm; they failed to abide by the loan instructions provided and failed to comply with their obligations in terms of the Council of Mortgage Lenders Handbook for Scotland and in particular the duty to report to the lender an unusual circumstance in relation to the transaction; and his failure to comply with rule 24 of the Solicitors (Scotland) Accounts etc Rules 2001.
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 with effect from 1 June 2012 any practising certificate held by 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 of the Society or its Practising Certificate Subcommittee.
The Tribunal was greatly concerned by the respondent’s conduct. The Tribunal considered that there were systematic ongoing failings. There had been three inspections and three appearances before the Guarantee Fund Committee, but it was only after the commencement of conduct proceedings that rigorous changes in process were made. The respondent was the sole partner responsible and the designated cashroom partner, and should have known what was happening within his firm. His conduct was a serious failure to supervise staff over a long period in respect of numerous transactions. Breaches of the money laundering regulations were not the most serious, but taken in cumulo with the other matters were sufficient to amount to professional misconduct. The Tribunal considered, given the serious and ongoing failings, that it was necessary to impose a restriction on the respondent’s practising certificate in order to ensure that the public were protected.