Scottish Solicitors Discipline Tribunal
Reports of cases relating to Massimo D'Alvito; James Anthony McCusker; Donald Stewart Murray; Thomas Williamson
A complaint was made by the Council of the Law Society of Scotland against Massimo D’Alvito, solicitor, Edinburgh. The Tribunal found the respondent guilty of professional misconduct in respect that he acted in a dishonest and deceitful fashion by engaging repeatedly in a scheme designed by him to recover money from the Scottish Legal Aid Board to which he was not entitled. The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland.
On 81 instances, the respondent had submitted claims for payment to the Scottish Legal Aid Board which contained invented outcomes in order to secure payment at an earlier stage than he would otherwise be entitled. On six occasions, he had fabricated and/or inaccurately described certain diets, creating an opportunity for him to fraudulently claim add-ons to the core fixed fees amounting to £360. The respondent had repaid all overpayments to the Scottish Legal Aid Board. The Tribunal accepted that on the 81 occasions referred to, the respondent had submitted claims for payment for sums which would have been payable at a later stage, and that on the six occasions where he had submitted claims for payment to which he was not entitled at all the value was low. However, the respondent had admitted engaging in a deliberate and dishonest course of conduct which had extended over a period of two years. He had submitted claims for payment that contained deliberate false entries and in each of these cases he had completed a certificate indicating their truth and accuracy.
Although the respondent had co-operated with the Society and had not previously appeared before the Tribunal, the conduct in this complaint involved deliberate dishonesty. Such systematic abuse of public funds would inevitably seriously damage the reputation of the profession. This conduct clearly demonstrated that the respondent was not a fit person to be a solicitor and accordingly the Tribunal had no choice but to strike his name from the Roll of Solicitors.
James Anthony McCusker
A complaint was made by the Council of the Law Society of Scotland against James Anthony McCusker, solicitor, Paisley. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of (a) his conduct falling far below the standard to be expected of a competent, reputable and careful solicitor acting on behalf of a purchasing and selling client in a conveyancing transaction; (b) his failing to comply with the terms of the Accounts Rules insofar as they relate to Money Laundering Regulations, in particular rule 24; (c) his failing to comply with regs 5, 6, 7, 11, 14 and 17 of the Money Laundering Regulations 2007; and (d) his failing to comply with part 7, and in particular s 330, of the Proceeds of Crime Act 2002. The Tribunal censured the respondent and fined him in the sum of £2,500.
The Tribunal was concerned by the fact that the respondent, although an experienced conveyancer, appeared not to have realised that questions required to be asked with regard to these transactions, which concerned back-to-back sales and a potential revolving deposit scheme, and that he should have made a SAR report. He should have been alerted to the possibility that these transactions may have been designed to facilitate the obtaining of mortgage funding by deception.
The Tribunal has made it clear in numerous findings the importance of solicitors being vigilant in these types of cases. The Tribunal considered it important that a message is sent out to both the profession and the public that it is not appropriate for solicitors to deal with transactions such as this in such a reckless way. The Tribunal noted that the other two solicitors involved, Mr Craig and Mr Tulips, had both recently been dealt with by the Tribunal in respect of the same transactions and each was censured and fined £2,500. The Tribunal was not persuaded by the submissions for the respondent that he was less culpable due to his perceptions of the case. The fact remained that he played an integral part in these illegal transactions and had therefore to accept the consequences of his actions. The Tribunal had no hesitation in considering that the principle of comparative justice should apply.
Donald Stewart Murray
A complaint was made by the Council of the Law Society of Scotland against Donald Stewart Murray, Solicitor, Kirkcaldy. The Tribunal found the respondent guilty of professional misconduct in respect that he failed and/or delayed in undertaking any work in an attempt to conclude the administration of an estate for 14 months. The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that for an aggregate period of four years any practising certificate held or issued to him should 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 or its Practising Certificate Subcommittee. Further, the respondent was ordered to pay to two secondary complainers, who had been beneficiaries of the estate, £500 compensation.
The respondent had failed to progress the executry for a period of 14 months. In that time he had been contacted repeatedly by beneficiaries. On those occasions, he had either misled or deceived the beneficiaries. The Tribunal was most concerned by the respondent’s dishonest responses to the beneficiaries. This conduct in particular suggested that the public could be in danger should the respondent continue to work with a full practising certificate. The Tribunal had regard to the fact that the Society’s records did not disclose any previous involvement with the Tribunal. However, the nature of the misconduct and his lack of engagement with proceedings led the Tribunal to the conclusion that should the respondent attempt to practise as a solicitor in future he should be restricted to working as an assistant for a period of time.
The respondent’s misconduct had caused significant inconvenience to the secondary complainers for a substantial period of time, resulting in concern on their part. The respondent had taken no steps to rectify matters.
A complaint was made by the Council of the Law Society of Scotland against Thomas Williamson, solicitor, Paisley. The Tribunal found the respondent not guilty of professional misconduct but remitted the complaint to the Society in terms of s 53ZA of the Solicitors (Scotland) Act 1980.
On moving from one firm to another, the respondent had taken with him three wills where he was the sole executor without seeking instructions from the testators. These wills had been returned immediately his actions were called into question. There appeared to be absolutely no issue of dishonesty in connection with the conduct. The Tribunal accepted that the respondent had acted contrary to the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008. The question for the Tribunal was whether the breach of these rules amounted to professional misconduct.
Clearly the respondent’s conduct was not what would be expected of a competent and reputable solicitor. The Tribunal, however, had difficulty in describing the conduct as “serious and reprehensible”. It did not appear to the Tribunal that the respondent had deliberately disregarded his clients’ interests, but that he had misdirected himself as to the appropriate steps to take. While the conduct did not meet the standard of “serious and reprehensible”, it was clearly not of the standard which could reasonably be expected of a competent and reputable solicitor and the conduct certainly comprised more than inadequate professional service.