Scottish Solicitors' Discipline Tribunal
Reports of cases relating to Fiona Marie Cairns; Sheena Jane Savage; John Urquhart
Appeal under s 42ZA: Fiona Marie Cairns
An appeal was lodged by Fiona Marie Cairns, solicitor, FMC Legal Ltd, 499 Kilbowie Road, Clydebank, against a decision of the Council of the Law Society of Scotland to uphold a complaint of unsatisfactory professional conduct against the appellant following a complaint by a client.
The Society had found that the solicitor had breached the 2008 Practice Rules, in particular rule 6 (conflicts), rule 9 (effective communication) and in so acting had breached rules B1.3 (independence) and B1.4 (interests of the client). The Society’s finding of unsatisfactory professional conduct was based on the fact that the appellant failed to advise her client when the point was reached that she knew her firm would require to withdraw from acting.
The Tribunal found that the decision that the Society’s subcommittee reached was one that could reasonably have been made on the information before it, and considered that it was not necessary for the Society to look beyond the obvious meaning of an email that was sent, asking another firm if it would be prepared to take on the client. The Tribunal was of the view that although the subcommittee’s decision could have been a little clearer in its reasoning, the correct procedure was followed, the subcommittee considered all the relevant matters and produced a decision with sufficient reasons, and accordingly confirmed the determination of the Society.
Sheena Jane Savage
A complaint was made by the Council of the Law Society of Scotland against Sheena Jane Savage, former solicitor, Helensburgh. The Tribunal found the respondent guilty of professional misconduct in respect of her failure to inform the lenders in respect of 14 transactions of a number of material facts relating to the price stated in the missives and disposition substantially exceeding the price paid, this being described as a deposit or discount that was deducted by the seller, the fact that the price disclosed to the lender client was the disposition price not the actual price or the price paid at settlement, that part of the purchase price was not being paid through the firm, that the purchaser was paying no part of the purchase price, that the loan advanced by the lender significantly exceeded the actual price paid and the unused part of the loan funds and the price paid at settlement, after deduction of fees and outlays, was paid either to the purchaser or to some person other than the seller; her failure to check the source of funds of any deposits allegedly paid by purchasers or to check any incentives allegedly granted to any of the purchasers; and her allowing a system to be instituted and operated where no checks were carried out in respect of any deposits allegedly paid by her clients in the said transactions, and exercising a lack of supervision of a registered paralegal in respect of their handling of the transactions.
The Tribunal censured the respondent and fined her the sum of £2,500.
The Tribunal had no hesitation in making a finding of professional misconduct. In this case, there were 14 transactions where the respondent failed to disclose material information that clearly would have affected the lenders’ decision to lend. This failure resulted in the lenders providing funds in excess of the price actually paid by the purchasers for the properties. The Tribunal has made it clear on numerous occasions that a solicitor, when acting for a purchaser and a lender, has a professional duty to act with utmost propriety towards the purchaser and the lender clients. The respondent was the partner responsible for these transactions and had a duty to exercise proper supervision over the paralegal who was working for her.
If solicitors fail to protect the interests of lender clients, it is very damaging to the reputation of the legal profession. There were a large number of transactions over a five-month period. The Tribunal considered that the misconduct in this case was at the middle of the scale and that it was necessary to impose a fine in addition to a censure to show how seriously it took the respondent’s misconduct. However, it took into account the fact that there had been an early plea of guilty, that the respondent had shown remorse and insight, had a previously unblemished record, had produced supportive references and had removed herself from the profession.
A complaint was made by the Council of the Law Society of Scotland against John Urquhart, solicitor, Kirkcaldy. The Tribunal found the respondent guilty of professional misconduct in respect of his being convicted on 29 October 2014 of contraventions of s 52(1)(a) and (b) of the Civic Government (Scotland) Act 1982. These involved the downloading from the internet of 75 indecent images of children over a three-year period to 2013, and sharing several of them with other people on one occasion. The Tribunal struck the respondent’s name from the Roll of Solicitors in Scotland.
It is a fundamental principle that a solicitor requires to be a person of integrity. If the public is to have trust in the profession, the profession must observe a high standard of conduct. It has been said often that this requirement applies equally to a solicitor’s private life as it does to his professional conduct. The respondent admitted having been convicted on indictment of two serious charges, resulting in him being made the subject of a community payback order and subject to the additional restrictions and supervision in relation to the Sex Offenders Act 2003.
It was accepted that the number and nature of the images involved were at the lower end of the scale. However, the offending behaviour involved is considered by society to be serious and abhorrent. The Tribunal had no hesitation in finding the respondent guilty of professional misconduct. Ultimately, the question was whether a conviction of this nature was compatible with an individual being on the roll. This was very serious conduct, extremely damaging to the reputation of and public confidence in the profession. The Tribunal concluded unanimously that the only possible sanction was to strike the name of the respondent from the roll.