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Scottish Solicitors Discipline Tribunal

19 January 15

Reports of cases relating to James Kelly; Roy William Andrew Miller; Gerard Tierney; David Blair-Wilson

James Kelly

A complaint was made by the Council of the Law Society of Scotland against James Kelly, solicitor, Saline, Fife. The Tribunal found the respondent guilty of professional misconduct in respect that he (a) between 1 March 2010 and January 2013 failed to take any steps to administer or wind up an estate; (b) between 1 March 2010 and January 2012 delayed unconscionably and ultimately failed altogether to respond to the reasonable requests of the secondary complainer and solicitors appointed on her behalf for information regarding the terms of a signed will or to obtemper mandates sent to him dated 28 July 2011 and 5 September 2011 insofar as relating to the secondary complainer as an individual and as a beneficiary in terms of the said will; (c) between 7 November 2012 and 28 November 2013 repeatedly failed to reply to the reasonable enquiries of the complainers or to comply with notices served upon him; and (d) between 15 January and 28 November 2013 repeatedly failed to reply to the reasonable enquiries of the complainers in another case and to comply with notices served upon him. The Tribunal struck the name of the respondent from the Roll of Solicitors in Scotland.

For a period of almost two years the respondent had failed to take any steps to administer an estate where he was appointed executor. For a period in excess of two years, before falling ill, the respondent had failed to respond to either the secondary complainer or her solicitors and had failed to produce the signed will. Thereafter, following his illness, the respondent had done nothing to produce the signed will until the date of the hearing. In November 2013 the respondent had indicated to the Society that he would deliver up the signed will to its offices. The respondent had failed to respond to correspondence and notices from his regulatory body in relation to two separate matters. In October 2013 he had requested further time to deal with matters. The respondent had regained his driving licence in January 2013, and had been in a position to work for the past year. Despite this, he failed to respond to the matters raised by the Society.

The Tribunal considered that each of these matters amounted to professional misconduct, clearly falling well below the standard to be expected of a competent and reputable solicitor, that could only be described as serious and reprehensible.

With regard to the issue of compensation, It was clear from the evidence of the secondary complainer, and the admission of the respondent, that she had been caused considerable distress by the respondent’s misconduct. In all of these circumstances, the Tribunal considered that the appropriate amount of compensation to be awarded to the secondary complainer was £1,500.

Roy William Andrew Miller

A complaint was made by the Council of the Law Society of Scotland against Roy William Andrew Miller, solicitor, Glasgow. The Tribunal found the respondent guilty of professional misconduct in respect of his failure to settle an account dated 14 March 2013 in the sum of £3,616.09 and failure to respond to reminders despite having received reimbursement of that amount from the Scottish Legal Aid Board, his defending court proceedings raised against him in respect of the aforementioned outstanding account without any statable defence, his misleading the reporter in relation to her outstanding account during the course of telephone calls, and his failure or delay in responding to correspondence and statutory notices from the Society.

The Tribunal had no hesitation in finding the respondent guilty of professional misconduct. Solicitors must be trustworthy and act honestly at all times so that their personal integrity is beyond question. It is extremely damaging to the reputation of the legal profession if solicitors provide misleading information. Solicitors instructing reports are liable to pay the fees and the reporter in this case was acting in terms of an interlocutor from a court. The Tribunal was also extremely concerned to note that when the respondent was before the Tribunal in respect of previous findings on 27 September 2012, he advised the Tribunal that he had taken steps to make sure that nothing similar happened again. The findings in the previous case were analogous and showed a pattern of behaviour of not dealing with things properly and failing to respond. The Tribunal considered that there was a real risk that if the respondent continued as a sole practitioner, something similar would happen again.

The Tribunal censured the respondent and ordered an aggregate restriction on his practising certificate for three years, which means that the respondent will require to work under supervision for a three year period before he can obtain a full practising certificate. The Tribunal made the usual order with regard to publicity and expenses.

Gerard Tierney

A complaint was made by the Council of the Law Society of Scotland against Gerard Tierney, Boswell Legal Chambers, Auchinleck. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of his failure to settle two invoices issued by Nationwide Expert Witness Service or to respond to reminders, despite having received reimbursement of the sums concerned from the Scottish Legal Aid Board, and his failure to satisfy the terms of a sheriff court decree, granted against and intimated to him, for said sums. The Tribunal censured the respondent.

In this case the creditors had had to obtain a court decree before the respondent had eventually paid the principal sum due. This, therefore, was not just a case of a simple delay in payment. Expert witnesses accept instructions from solicitors based on a system of trust. The respondent’s conduct clearly breached that trust and damaged the reputation of the profession. This conduct, in cumulo, fell well below the standard to be expected of a competent and reputable solicitor and was serious and reprehensible. The respondent’s whole demeanour before the Tribunal had confirmed his embarrassment and remorse. The respondent had co-operated with the Tribunal and had tendered an early plea of guilty. He appeared to demonstrate insight into his conduct and had taken steps to avoid a repetition of this matter. There appeared to be no requirement for supervision and no risk to the public.

David Blair-Wilson

A complaint was made by the Council of the Law Society of Scotland against David Blair-Wilson, solicitor, presently of HMP Castle Huntly, Longforgan, near Dundee. The Tribunal found the respondent had been convicted of four offences, three of supplying controlled drugs to prisoners in prison, and one of attempting to supply prohibited articles, namely mobile phones and related equipment, to a prisoner in prison, and sentenced to a period of imprisonment of four years, and that accordingly s 53(1)(b) of the Solicitors (Scotland) Act 1980 applied to the circumstances of the case. The Tribunal struck the respondent’s name from the Roll of Solicitors in Scotland.

As a solicitor, the respondent was a member of a profession where a high standard of ethical conduct is required. Members of the public must have a well founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, propriety and trustworthiness. It was quite clear that the charges on the indictment were in their own right serious matters. They had been prosecuted in the High Court of Justiciary and had resulted in a sentence of four years’ imprisonment. These offences had been committed while the respondent was acting in his role as a solicitor. The respondent would be well aware of the seriousness of these charges and in particular the consequences of taking controlled drugs and mobile telephones into a prison. This clearly represented conduct which is a danger to the public and which must have seriously damaged the reputation of the legal profession. The respondent had shown no remorse or appreciation of the seriousness of these matters in the course of the proceedings before the Tribunal. He did not lodge answers or attend the Tribunal. The Tribunal concluded that there was no measure short of striking the respondent’s name from the roll which was compatible with the serious nature of his conviction. 

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