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Scottish Solicitors' Discipline Tribunal

16 January 17

Reports relating to Graeme Crombie Miller; Euan Maxwell Terras; Michael Patrick George Hughes; Philip Simon Hogg

Graeme Crombie Miller

An appeal was made under s 42ZA(10) of the Solicitors (Scotland) Act 1980 by Elizabeth Reid Blair, solicitor, Isle of Arran against the determination made by the Council of the Law Society of Scotland dated 22 March 2011 in respect of a decision not to uphold a complaint of unsatisfactory professional conduct against Graeme Crombie Miller, solicitor, Glasgow (the second respondent). The Tribunal confirmed the determination of the first respondent dated 22 March 2011.

The appeal was defended by the first respondent. The second respondent did not enter the appeal process. The Tribunal had to decide whether or not there was an employment relationship between Mrs A and the second respondent, and whether Mrs A was an individual who was subject to the direction and control of the second respondent when an email was sent in July 2009. The Tribunal was extremely troubled by the nature of the evidence given by the second respondent. It considered that there was a paucity of evidence led before it and it was unable to determine on the balance of probabilities that Mrs A was either an employee of the second respondent or that the second respondent was exercising direction and control over her in July 2009. The appeal was accordingly unsuccessful.

The Tribunal considered that the first respondent could have done more to obtain information from employees who would have been in a position to say who was in control of the day-to-day running of Bankford Ltd and the second respondent’s company. In these circumstances and also due to the serious concerns about the evidence of the Society’s witness, the Tribunal considered it appropriate to find no expenses due to or by either party.

[This decision was given in March 2012, but the Tribunal ordered that publicity be deferred until the conclusion of any police investigation or criminal proceedings. The order was finally lifted in November 2016.]

Euan Maxwell Terras

A complaint was made by the Council of the Law Society of Scotland against Euan Maxwell Terras, Sprang Terras, Ayr. The Tribunal found the respondent guilty of professional misconduct in respect of his acting in the purchase of a property with the ancillary execution of a minute of agreement and the drafting of a will where his son was the residuary beneficiary, and found that in doing so, (1) he acted in an actual conflict of interest situation in the purchase of the property and the execution of the minute of agreement where he had a personal and/or financial interest in both; (2) he did not insist that Miss MM consult other solicitors either in the purchase of the property or the execution of the minute of agreement when both were actual conflicts of interests; (3) he could not discharge his professional obligations to solely look after the interests of Miss MM both in the purchase of the property and the execution of the minute of agreement, given the actual conflict of interest in both between him and Miss MM; (4) he called into question his personal integrity/independence in taking instructions and/or drafting the second will, which benefited members of his family and in terms of which they would derive significant benefit; and (5) his advice, given the terms of the draft second will, was not free from external influence and placed him in a conflict of interest.

The Tribunal censured the respondent and fined him in the sum of £8,000.

The Tribunal considered that to act for the purchaser of a property where he had a personal interest in the purchase, in that his wife was lending the funds for the purchase, was a clear conflict of interest. In addition the Tribunal was satisfied that in the same circumstances the acceptance of instructions to draft the purchaser’s will, naming members of his family as beneficiaries, was also a very clear breach of the Code of Conduct for Solicitors. The Tribunal noted that the respondent had failed to recognise two very obvious conflicts of interest. However, the Tribunal noted that there was no allegation of dishonesty and took into account that the relationship between the respondent and Miss MM was akin to a close familial relationship. The Tribunal would have taken a very different view of the matter if the respondent had taken advantage of a client whom he did not know for purely personal gain. The Tribunal therefore considered that what happened was an isolated incident which arose out of a particular set of circumstances in a transaction which took place 13 years ago. The Tribunal took into account that the respondent had been a solicitor for over 20 years and apart from this case had an unblemished record. The Tribunal therefore considered that there was a low risk of repetition, on the basis of the evidence heard regarding the circumstances of the transaction. The Tribunal considered that such clear breaches of professional rules would be viewed by the profession as serious and reprehensible departures from the standard expected of a competent and reputable solicitor. The Tribunal therefore considered that the respondent’s conduct amounted to professional misconduct. The Tribunal considered that in all the circumstances a substantial fine of £8,000 should be imposed in addition to a censure.

Michael Patrick George Hughes

A complaint was made by the Council of the Law Society of Scotland against Michael Patrick George Hughes, solicitor, Glasgow. The Tribunal found the respondent not guilty of professional misconduct and remitted the complaint to the Society in terms of s 53ZA of the Solicitors (Scotland) Act 1980.

The Tribunal considered that the respondent’s actions in taking a file to his new employers against those employers’ express instructions, continuing to act on the client’s behalf, and writing letters to the client’s bank manager in connection with the prospects of success and the valuation of a claim, in the circumstances of this particular case, were not of themselves sufficiently serious and reprehensible to amount to professional misconduct. The Tribunal considered that the respondent had not misled the client with regard to the value of her claim. It noted that while there could be an overlap between professional negligence and professional misconduct, professional negligence did not of itself constitute professional misconduct. It accepted the submission made on behalf of the respondent that the representations he made were based on an honest belief, albeit that it was mistakenly held. This was an isolated incident involving only one file. The test for misconduct was stringent and had to involve an assessment of the degree of the respondent’s culpability. The Tribunal did not condone the respondent’s actions. However, it did not consider that his conduct was sufficiently serious and reprehensible to meet the test for professional misconduct, but considered that his conduct might well amount to unsatisfactory professional conduct. The Tribunal accordingly remitted the case under s 53ZA to the Society.

Philip Simon Hogg

A complaint was made by the Council of the Law Society of Scotland against Philip Simon Hogg, solicitor, Kirkintilloch. The Tribunal found the respondent guilty of professional misconduct in respect of his failure in his obligation to see that the firm in which he was a partner complied with the accounts rules, his failure in his duty to supervise the firm’s office manager and cashier, his failure in his duty to take steps to satisfy himself that fees being charged to executries were properly so charged, his failure to see that at all times the sums at credit of the client account exceeded the sums due to the clients, and his continuing to draw from the firm while it was being financed by the overcharges to clients.

The Tribunal suspended the respondent for a period of five years.

The Tribunal was satisfied that the respondent’s failure to supervise adequately the accounting practices of his firm was extremely serious. It was not expected that the respondent should personally carry out all the work in his firm, but if he decided to delegate any work there remained a duty of supervision and the respondent had to accept responsibility for the improper actions which resulted from a failure of supervision. The respondent, as a partner, had a duty to supervise all aspects of the practice including fees rendered. If the respondent had carried out his duty of supervision in accordance with the standards to be expected of any competent and reputable solicitor, he would have been aware of the accounting irregularities.

The Tribunal noted particularly the regularity of these transactions and the long period over which they had occurred. Any partner, but particularly those in small firms, had to keep track of the fees rendered. The respondent was not a new solicitor. The client account had to be kept sacrosanct at all times. The Tribunal had to assess the risk to the public if the respondent was allowed to continue practising. Part of being a solicitor was being financially aware regarding your own drawings and those of your partners. The Tribunal considered that the respondent had been reckless and naïve. It noted that the accounts rules were there for a purpose. Solicitors should not sign accounts certificates “on trust”. All solicitors had a duty to satisfy themselves as to the accounting position. The Tribunal accepted that there had been no dishonesty on the part of the respondent. It was of the view that the appropriate sentence in this case was to suspend the respondent from practice for a period of five years to demonstrate the gravity of the misconduct.

Scottish Solicitors Discipline Tribunal
www.ssdt.org.uk

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