Scottish Solicitors' Discipline Tribunal
Reports of cases relating to Iain David Haywood; William Christopher Tulips; Frederick Neil Waterman; Tracey Campbell-Hynd; Richard Thorburn (application for restoration)
Iain David Haywood
A complaint was made by the Council of the Law Society of Scotland against Iain David Haywood, solicitor, Glenrothes. The Tribunal found the respondent guilty of professional misconduct in respect of his failure to comply with his common law duties when acting for a purchaser and lender, his failure to comply with rules 3, 4 and 9 of the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008, and his failure to comply with the requirements of the CML Handbook.
The Tribunal censured the respondent and fined him in the sum of £2,000.
The respondent failed to inform the lender that the seller had owned the property for less than six months, and in one transaction failed to advise that the price paid by the borrower in the end purchase was a substantial increase on the price paid by the mid-purchaser. He also failed to advise the lender that a deposit for the purchase price was not provided by the purchaser. The Tribunal also noted that in this case the instructions were provided by an intermediary and offers to purchase were made without the respondent having met the purchaser. This was of concern because the respondent failed to ensure that he had the authority of his purchasing clients before making offers on their behalf. The respondent owed duties of care to both the purchaser and the lender. The Tribunal accordingly had no hesitation in finding that the respondent’s conduct amounted to professional misconduct. The Tribunal did not consider that there would be a risk to the public if the respondent was allowed to continue with a full practising certificate. The misconduct in this case fell towards the middle to lower end of the scale, but the Tribunal considered that a fine of £2,000, in addition to a censure, was required to show the seriousness with which the Tribunal viewed the breaches of the CML Handbook and of the common law duty of care to clients.
William Christopher Tulips
A complaint was made by the Council of the Law Society of Scotland against William Christopher Tulips, solicitor, Hamilton. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of (a) his failure to comply with the terms of the common law standard applicable to a solicitor acting on behalf of a lender in a conveyancing transaction, in particular his failure to report to his client; his failure to comply with the explicit instructions provided by his client being those within the CML Lenders Handbook applicable to Scotland; his failure to act with absolute propriety and to protect the interests of his client, being the lender, in respect of each transaction; (b) his failure to comply with the terms of rule 6 of the Accounts Rules; (c) his failure to comply with the terms of the Accounts Rules in so far as they relate to Money Laundering Regulations, in particular rule 24; and (d) his failure to comply with regs 5 and 14 of the Money Laundering Regulations 2007.
The Tribunal censured the respondent and fined him in the sum of £2,500.
The conduct in this case involved five separate transactions. In each of these, the respondent had failed to report to the lenders in terms of his common law obligations as well as obligations imposed in the CML Handbook. In each he had failed to act with absolute propriety and had failed to protect the interests of his client. All five transactions involved a failure to comply with the Accounts Rules and Money Laundering Regulations. Three involved back-to-back transactions. It was accepted by the Society that there was no suggestion of any dishonesty on the part of the respondent. However, when a solicitor takes instructions from a lender he owes that lender the same duties of care as other clients. The CML Handbook is a fundamental part of the lender’s instructions. Noting that the five transactions were undertaken over a short period of time, that the respondent had fully co-operated with the Society from the stage of his first Guarantee Fund interview, that he showed remorse and had demonstrated insight into his failures, that a Society inspection in 2012 had not disclosed any further repetition of these failures, and the lengthy unblemished record of the respondent within the profession, the Tribunal were able to conclude that there was no ongoing risk to the public and therefore no requirement for supervision. However, as an experienced conveyancer the respondent should have been well aware of his responsibilities in terms of the CML Handbook and these failures to report should have been obvious to him. The Tribunal considered that his failures to protect the lenders involved had placed the lenders and consequently the profession at risk, and thus it was important to emphasise the seriousness with which it viewed his conduct. The Tribunal accordingly considered that a fine of £2,500 in addition to a censure was appropriate.
Frederick Neil Waterman
A complaint was made by the Council of the Law Society of Scotland against Frederick Neil Waterman, Waterman’s Solicitors, Edinburgh. The Tribunal found the respondent guilty of professional misconduct in respect of his repeated breach of rule B3.5(a) of the Advertising and Promotion Practice Rules 2011 over a period of 20 months from 21 July 2011 in advertisements and promotional materials which contained inaccurate or misleading statements, in contravention of the spirit of an undertaking given by him to the Society dated 21 July 2011.
The Tribunal censured the respondent and fined him in the sum of £5,000.
The Tribunal noted that the respondent had blatantly continued with misleading advertising despite having given an undertaking to his professional body. Such repeated breach of the undertaking was serious and reprehensible. While the respondent had co-operated with the proceedings from commencement and this was his first appearance before the Tribunal in a career that spanned 16 years, the Tribunal was concerned about the repeated nature of the breach. The main function of the Advertising Rules is to ensure that the public are not being misled. It is an essential quality of every solicitor that he is trustworthy and honest. The Society had taken appropriate and swift action to enforce the rules for the protection of the public. However, the respondent had continued with the advertising for a significant period in the face of an opinion from senior counsel that such advertising breached the rules. The Tribunal considered that the respondent had brought the profession into disrepute by breaching the clear undertaking given. In all the circumstances, a substantial fine was appropriate.
A complaint was made by the Council of the Law Society of Scotland against Tracey Campbell-Hynd, solicitor, Hamilton. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of (1) her unreasonable delay to respond to the reasonable enquiries of the complainers; (2) between 30 July 2012 and 28 October 2013 her unreasonable delay and/or failure to respond to, or her provision of misleading information in relation to, requests, written and verbal, from WJM, the solicitor who took over acting for her client BID; and (3) her failure to comply with the Society’s Guidelines on Mandates 1998.
The Tribunal censured the respondent and fined her in the sum of £1,000.
The respondent had failed to obtemper a mandate up to the date of the raising of the complaint. She had failed to respond to correspondence from the solicitors representing her former client, and to correspondence and notices sent to her by the Society. These failures, together, formed a lengthy pattern of conduct. The Tribunal accordingly had no hesitation in finding that the respondent’s conduct amounted to professional misconduct. It took the view that the misconduct in this case fell towards to the lower to middle end of the scale. The respondent had compensated the secondary complainer prior to the hearing. Additionally, she had introduced new practices within the firm to deal more effectively with incoming correspondence. However, given the pattern of conduct over a considerable period of time and the damage to the reputation of the profession by such conduct, the Tribunal considered that a fine of £1,000 in addition to a censure was required to show the seriousness with which the Tribunal viewed her conduct.
Application for restoration: Richard Thorburn
An application for restoration to the Roll of Solicitors in Scotland was lodged with the Tribunal by Richard Thomas Thorburn, Glasgow.
The Tribunal had to decide whether or not the applicant had discharged the onus on him to displace the conclusion reached at the time of his striking off that he was not a fit and proper person to be a solicitor. The Tribunal noted that Mr Thorburn’s application was to restore him to a profession where the qualities of openness, honesty and trustworthiness are sacrosanct.
The Tribunal considered that in proceedings before this and the previous Tribunal Mr Thorburn had demonstrated a complete disregard for the Accounts Rules and a lack of understanding of the responsibility of solicitors for compliance with these rules and other professional requirements. Before the Tribunal in this application Mr Thorburn demonstrated a continuing lack of insight into his failures. Ten years had passed since the applicant was last in practice, and despite assurances from Mr Thorburn that he had had time to reflect on the events which led to his being removed from the roll, he had done nothing to educate himself regarding the Accounts Rules. The Tribunal considered that this in itself would be sufficient to refuse the application.