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Scottish Solicitors' Discipline Tribunal

17 April 17

Reports relating to Graeme Miller Cunningham; David Stuart McDonald; William Nugent and David Drain

A complaint was made by the Council of the Law Society of Scotland against Graeme Miller Cunningham, of GMC Criminal Lawyers, Kilmarnock. 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 respondent, an experienced local criminal law practitioner, asked to see the secondary complainer’s social enquiry report. The respondent was not the agent representing the secondary complainer at the diet of deferred sentence. Social work staff allowed him to access the document without question. The standard of proof for the Tribunal is one of beyond reasonable doubt. The question for the Tribunal on this occasion was whether the agreed facts were sufficient for the Tribunal to make a finding that the respondent had acted in an untrustworthy, or dishonest, or fraudulent, or deceitful manner. The Tribunal unanimously concluded that the particular facts before it were not sufficient to make such a finding. That being the case, the Tribunal found the respondent not guilty of professional misconduct. However, the Tribunal concluded that the respondent might be guilty of unsatisfactory professional conduct and so it was appropriate to remit the complaint to the Council of the Society in terms of s 53ZA.

David Stuart McDonald

A complaint was made by the Council of the Law Society of Scotland against David Stuart McDonald, solicitor, Aberdeen. The Tribunal found the respondent guilty of professional misconduct singly and in cumulo in respect of his failure to communicate with his client, the secondary complainer, failure to respond and provide documentation to the Scottish Legal Complaints Commission and failure to respond to the complainers; his failure to act in and/or represent the best interests of his client, in that he did not diligently pursue his client’s interests with the liquidators or their solicitors; his failure to advise his client of any relevant court dates and his acceptance of liability on behalf of his client for court expenses in respect of sections of the court procedure; and his withdrawing from acting on his client’s behalf without advising his client that he was withdrawing and accordingly without providing any reason for the withdrawal.

The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that any practising certificate held or issued to the respondent shall be subject to such condition as will limit him to acting as a qualified assistant or as a consultant, whether on an employed or self-employed basis, to or with such solicitor, firm or employer as may be approved by the Council of the Society or its Practising Certificate Subcommittee and that for an aggregate period of three years.

The Tribunal was satisfied that the respondent’s behaviour was serious and reprehensible and met the test for professional misconduct. The respondent had failed to act in the best interests of his client by failing to pursue his client’s interests diligently with the liquidators or their solicitors, failing to inform him of court dates, accepting liability for expenses on his behalf, and withdrawing from acting without advising him. He had failed to communicate effectively with his client, the Law Society of Scotland and the SLCC. The course of conduct had covered a period between 2010 and 2014. The respondent had failed his client and had also failed the profession. Failure to cooperate with the SLCC and the Society hampered these bodies in the performance of their statutory duties and brought the profession into disrepute. The Tribunal was of the view that the respondent’s current working arrangement was a positive development and should be allowed to continue. However, if his practising certificate was not subject to any restriction, the respondent would be free to operate as a partner or sole practitioner again. The Tribunal did not consider that this would provide adequate protection to the public or to the respondent in the event of a recurrence of ill health. The Tribunal therefore was of the view that the respondent should be allowed to work as a consultant but that any practising certificate held or issued to him should be subject to such condition as would limit him to working with a solicitor, firm or employer approved by the Society, whether that was on an employed or self-employed basis, the appropriate period being three years.

William Nugent and David Drain

A complaint was made by the Council of the Law Society of Scotland against William Nugent and David James Drain, solicitors, Alexander, Jubb & Taylor, Glasgow. The Tribunal found both respondents guilty of professional misconduct as a consequence of their failure between September 2004 and May 2011 to comply with rule 4 of the Solicitors (Scotland) Practice Rules 1991 (no sharing of fees or profits with non-solicitors), by agreeing with a mortgage broker to pay £100 for each client he referred to them. The Tribunal censured both respondents.

The Tribunal was faced with two very experienced solicitors who had repeatedly over a number of years breached a well  known rule for the profession. As had been pointed out, prior to the Practice Rules 1991 this conduct had in fact amounted to a criminal offence. Whilst the Tribunal accepted that in this case there was no suggestion that the respondents’ clients were put at risk, the rule that was broken involved a significant matter of principle. The solicitors’ regulatory body had, within the rule, set out a standard of behaviour to be observed by the members of the profession. This standard of conduct was set by the regulatory body in order to provide protection to the public.

It clearly could not be acceptable for a member of the profession to repeatedly ignore such rules. The public could not be expected to have faith in a regulatory body if members of the profession were permitted to ignore standards of conduct. This repeated breach of the Practice Rules for a period of seven years could only be described as a serious and reprehensible departure from the standard of conduct to be expected of a competent and reputable solicitor. 

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