Scottish Solicitors Discipline Tribunal
Reports of cases relating to Alasdair David Mackie; Thomas Murray
Alasdair David Mackie
A complaint was made by the Council of the Law Society of Scotland against Alasdair David Mackie of Mailers, Solicitors, Bridge of Allan. The Tribunal found the respondent guilty of professional misconduct in respect of his conduct not being in accordance with rules 3 and 5(1) of the Solicitors (Scotland) Practice Rules 1986; rule 5(2) of the Solicitors (Scotland) Practice Rules 2006; article 3 of the Code of Conduct for Scottish Solicitors 2002; article 6 of the Solicitors (Scotland) Standard of Conduct Practice Rules 2008; and rules 1.7.1 and 1.7.2 of the Law Society of Scotland Practice Rules 2011, by his acting on behalf of the landlord and the tenant in connection with a commercial lease in 2006, and also between 2011 and 2012 in relation to that lease and an associated executry when he had a conflict of interest. The Tribunal censured the respondent and fined him in the sum of £5,000. The compensation claim was withdrawn.
The Tribunal was of the view that the respondent should have immediately withdrawn from acting for both parties in 2006 after their instructions changed, and should have realised that to continue to act for both parties in a commercial lease was a breach of the Practice Rules, which are very clear in this regard. It was impossible in practice to be able to advise both a landlord and a tenant as to what was best for them in relation to a commercial lease. Further, in 2011 and 2012, when the respondent was dealing with the administration of the estate, he was clearly acting in a conflict of interest situation by continuing to act for the secondary complainer albeit in an unpaid capacity. In all the circumstances, the Tribunal considered that such clear breaches of the rules would be viewed by the profession as serious and reprehensible departures from the standards expected from a competent and reputable solicitor. The Tribunal noted that a very modest fee had been charged in relation to the preparation of the lease in 2006, and that the secondary complainer had not been charged any fees in relation to the correspondence in 2011 and 2012. It accepted that the respondent had acted out of a desire to be helpful. The Tribunal considered carefully whether the imposition of a restriction on the respondent’s practising certificate was necessary to protect the public. However, it considered that in all the circumstances, a substantial fine of £5,000 should be imposed in addition to a censure.
A complaint was made by the Council of the Law Society of Scotland against Thomas H Murray, Lucca, Italy.
A preliminary hearing was held to decide on the respondent’s preliminary pleas. The respondent had raised before the Tribunal several significant preliminary pleas under four headings. In each category, the remedy the respondent sought was for the Tribunal to dismiss the complaint. These being the respondent’s pleas, the onus fell upon him to justify each one.
The first argument the respondent put to the Tribunal was in relation to the proposition that an individual has a right to a fair trial by an impartial and independent Tribunal, at common law and in terms of the European Convention on Human Rights. The respondent described the content of a television programme broadcast by the BBC in January 2014 entitled “Lawyers Behaving Badly”. The criticisms described by the respondent, that had been made in the broadcast in relation both to himself and to the Tribunal, did not relate to the actual content of this particular complaint. The Tribunal considered itself in a position to direct itself appropriately to ignore extraneous information and influence.
The second argument appeared to raise the common law plea of mora, taciturnity and acquiescence. The respondent made no submissions in relation to this proposition and did not refer to any authority to support it. In these circumstances, the Tribunal could not uphold the plea. In any event, the Tribunal did not accept that there had been an unreasonable delay in relation to the period complained of by the respondent (3 July 2012 to 26 February 2014), as the fiscal for the complainers had explained that the fiscal appointed to prepare the complaint had had to investigate and communicate with five potential secondary complainers.
A third issue related to a question of time bar. Again, the respondent made no oral submissions regarding this plea and produced no authorities. There is no statutory time limit for the raising of a complaint before the Tribunal.
In his oral submissions, the respondent made submissions that an individual is entitled to a trial within a reasonable time, both at common law and by statute in relation to article 6 of the European Convention on Human Rights. The fiscal for the complainers indicated that he had no objection to the respondent making these submissions. With regard to any article 6 argument, the Tribunal took the view that it was bound by the case of Hall, 11 June 2002 and that the appropriate starting point for any lapse of time was the lodging of the complaint with the Tribunal, namely 26 February 2014.
The respondent also raised issues of relevancy of the complaint. The Tribunal considered the averments in the complaint to be relevantly pled and, if proved, could provide a basis for a finding of professional misconduct. It could not be said that the complaint lacked merit or was vexatious. The respondent also claimed that, because the Society and the Scottish Legal Complaints Commission did not follow their own policies regarding cross-copying correspondence, this complaint fell to be dismissed. No authority was referred to in support of this contention and no evidence or detail was given regarding the detail of any rules allegedly broken. This type of issue had previously been raised in the case of Council of the Law Society of Scotland v Robertson, 23 August 2007. The present Tribunal concurred with that case in the view that this matter would require to be raised by way of judicial review and would require specification of the procedures or specific rules allegedly broken.
The Tribunal refused the respondent’s motions to dismiss the complaint and ordered that a full hearing be fixed for 28 October 2014.
At the substantive hearing, the Tribunal found the respondent not guilty of professional misconduct.
The question for the Tribunal was whether the conduct admitted by the respondent was sufficiently grave and culpable as to be regarded by competent and reputable solicitors as serious and reprehensible. The Tribunal reached a view that the simple act of sending citations to the witnesses was not in itself sufficient to meet the required standard of conduct. Rather, the motive or intent in sending these documents was crucial. The question was whether the respondent had deliberately issued documents that were meant to appear to be formal and enforceable citations with penalties which could flow from non-compliance in an attempt to mislead the witnesses, or whether he had issued these documents simply as notices, but in hindsight in an improper form.
In the whole circumstances, the Tribunal did not accept that it had been established beyond reasonable doubt that the respondent had sent documents that he knew he had no authority to send with intent to deceive the witnesses. In these circumstances, the Tribunal found the respondent not guilty of professional misconduct. Nor did the Tribunal consider it appropriate to remit the complaint back to the Council of the Society in terms of s 53ZA.