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Scottish Solicitors' Discipline Tribunal

18 September 17

Reports relating to David William Nightingale; James Gerad Moore; Paul Thompson

David William Nightingale

A complaint was made by the Council of the Law Society of Scotland against David William Nightingale, solicitor, Cumbernauld. The Tribunal found the respondent guilty of professional misconduct in respect that he (a) obtained a loan from Mr McAfee by fraud; (b) attempted to obtain a loan from Mr A by fraud; (c) obtained a loan from Mr B by fraud; (d) failed to advise Mr A to take independent legal advice; (e) obtained a sum of money from Mrs D by fraud; (f) misappropriated the sum paid to the firm to account of fees by Mr F; (g) obtained a sum of money from Mr H by fraud; (h) obtained a sum of money from Mr I by fraud; (i) failed to advise Mr I to obtain separate legal advice.

The respondent’s name already having been removed from the Roll of Solicitors in Scotland at his request under s 9 of the Solicitors (Scotland) Act 1980, the Tribunal prohibited the restoration of the respondent’s name to the roll.

The Tribunal was satisfied that the respondent’s behaviour was serious and reprehensible and met the test for professional misconduct. Solicitors belong to a profession which requires high standards of ethical conduct. Members of the public must have confidence that solicitors are trustworthy and honest and that their integrity is beyond question. The Tribunal considered the letter written by the respondent and noted his remorse and insight into the seriousness of his conduct. However, the Tribunal considered that the course of dishonest conduct demonstrated that he was not a fit and proper person to be a solicitor. Given that the respondent’s name had already been removed from the roll, the Tribunal prohibited restoration of his name to the Roll of Solicitors under s 53(2)(aa) of the Solicitors (Scotland) Act 1980.

The Tribunal allowed the secondary complainer to withdraw his claim for compensation.

[A similar order prohibiting restoration of the respondent’s name to the roll was made in a separate complaint brought by the Society under s 53(1)(b) of the Solicitors (Scotland) Act 1980 in respect that the respondent had been convicted by a court of an act involving dishonesty.]

James Gerad Moore

 

 

A complaint was made by the Council of the Law Society of Scotland against James Gerad Moore, solicitor, Moore Macdonald, Motherwell. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of (a) breaches of rule 3 of the Solicitors (Scotland) Practice Rules 1986; (b) breaches of rules 6 and 24 of the Solicitors (Scotland) Accounts etc Rules 2001; (c) breaches of regs 5, 7 and 17 of the Money Laundering Regulations 2007; (d) breach of regs 4 and 6 of the Money Laundering Regulations 2003; (e) failure to implement loan instructions given to him and failure to fulfil his obligations in terms of the Council of Mortgage Lenders Handbook for Scotland, including a failure to report unusual circumstances to a lender in relation to a transaction, a failure to mention a deposit paid by a seller and a failure to mention the balance of a purchase price being paid by a person other than the borrower; (f) his failure, being a solicitor acting in a transaction for both purchaser and lender, to act with the utmost propriety towards both clients by withholding information from a client such as a deposit being paid by someone other than the purchaser client; and (g) his failure to retain the net free proceeds of sale in an interest bearing account in his firm’s name.

The Tribunal considered that in cumulo the respondent’s behaviour demonstrated a serious and reprehensible departure from the standards of conduct to be expected of a competent and reputable solicitor. It was particularly concerned about the respondent’s failure in one transaction to pay the net free proceeds of a sale into a solicitor’s interest bearing account. This called into question the respondent’s integrity and was damaging to the reputation of the profession.

The Tribunal had regard to the respondent’s previously unblemished record and subsequent Society inspections which had identified no issues. The Tribunal considered that a censure and fine of £1,000 was the appropriate sanction in the circumstances.

Paul Thompson

A complaint was made by the Council of the Law Society of Scotland against Paul Thompson, solicitor, Glasgow. The Tribunal found the respondent guilty of professional misconduct in respect that he failed to respond timeously, accurately or fully to correspondence or statutory notices sent by the Council to him on 30 October 2015, 25 November 2015, 8 January 2016 and 25 February 2016; he failed to communicate effectively by providing clear and comprehensive information in response to correspondence or statutory notices sent by the Council to him on 30 October 2015, 25 November 2015, 8 January 2016 and 25 February 2016; and he failed to respond promptly and efficiently to correspondence or statutory notices received from the Council in respect of its regulatory function.

The Tribunal censured the respondent and fined him £1,000.

The Tribunal was satisfied that the respondent’s behaviour was serious and reprehensible and met the test for professional misconduct. The behaviour amounted to a course of conduct of failing to cooperate with the respondent’s regulatory body. The Tribunal had on many occasions emphasised the importance of the duty of a solicitor to cooperate with the Society exercising its role as the regulatory body of the profession. The Society exercised this function to protect the public. It could not do so effectively without the cooperation of the members of the profession. Accordingly, the Tribunal unanimously found the respondent guilty of professional misconduct. The Tribunal considered the respondent’s conduct to be at the lower end of the scale of misconduct. However, when considering sanction it also had regard to the Tribunal’s previous finding of misconduct against the respondent for analogous matters. Further aggravating factors were the lack of remorse and insight displayed by the respondent and his failure to engage adequately with the Tribunal process. The Tribunal considered the appropriate sanction to be a censure and a fine.  

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