Scottish Solicitors' Discipline Tribunal
Reports relating to Andrew Forman; Aidan Vincent Gallagher; Jacqueline Johnston (s 42ZA appeal); John Gerard O'Donnell; Paul Kevin O'Donnell; John Kevin Quinn
A complaint was made by the Council of the Law Society of Scotland against Andrew Forman, solicitor, Donaldson & Henderson, Nairn. The Tribunal found the respondent not guilty of professional misconduct but decided to remit the complaint to the Council in terms of s 53ZA of the Solicitors (Scotland) Act 1980.
The respondent had received several items of correspondence from firms of solicitors between November 2014 and October 2015. He did not reply to every letter but he did send some correspondence and make telephone calls to those firms during that time. The Tribunal considered that the respondent’s conduct, while falling short of the standards expected of competent and reputable solicitors, did not constitute a serious and reprehensible departure from those standards. Best practice would have been to provide the letter and copy will concerned much sooner. Solicitors should respond promptly and appropriately to enquiries from other firms.
The Tribunal considered that the case was on the boundary between professional misconduct and unsatisfactory professional conduct. Although it was not serious and reprehensible, it had been unacceptable and might amount to unsatisfactory professional conduct. The Tribunal accordingly remitted the complaint under s 53ZA for consideration.
Aidan Vincent Gallagher
A complaint was made by the Council of the Law Society of Scotland against Aidan Vincent Gallagher, Aidan Gallagher & Co, Greenock. The Tribunal found the respondent guilty of professional misconduct in that he breached rules B1.2, B1.4 and B1.5 of the Law Society of Scotland Practice Rules 2011 by allowing his personal integrity to be called into question, not acting in the best interests of his client, and accepting improper instructions. The Tribunal censured the respondent.
The respondent accepted a note from his client who was in custody. It was addressed to the client’s brother and contained instructions to intimidate witnesses and persuade them to give false evidence in the trial against him. The respondent delivered the note. The complainers conceded that there was no evidence that the respondent was aware of the content of the note before he delivered it. He had not applied his mind when asked to pass on a message to another person. He allowed himself to be used in a scheme which attempted to pervert the course of justice. The consequences for those mentioned in the note could have been extremely serious. The respondent’s conduct could have created a danger to members of the public and was likely to damage the reputation of the legal profession. The Tribunal accordingly found the respondent guilty of professional misconduct.
The respondent cooperated with the investigation and entered into a joint minute. He showed remorse and attended in person. This was the first time the respondent had appeared before the Tribunal following a lengthy career in practice. There was no dishonest element to his conduct. The Tribunal was satisfied that a censure was sufficient to mark the gravity of the offending since it was accepted that the respondent did not have knowledge of the contents of the note. The Tribunal declined to make an award of compensation to the secondary complainer.
Jacqueline Johnston (s 42ZA appeal)
An appeal was made under s 42ZA(10) of the Solicitors (Scotland) Act 1980 by Esther Dangata, Edinburgh against a determination by the Council of the Law Society of Scotland (the first respondents) dated 8 February 2018 not to uphold a complaint of unsatisfactory professional conduct made in respect of a complaint against Jacqueline Johnston, solicitor, Livingston (the second respondent).
The appeal was defended by the first respondents. The second respondent did not enter the appeal process.
The first respondents made a motion to dismiss the appeal, claiming it disclosed no prima facie basis being irrelevant et separatim lacking in specification. The appellant was given an opportunity to amend her appeal but did not do so. The appellant did not appear at the procedural and preliminary hearing on 12 December 2018 and the Tribunal proceeded in her absence. The Tribunal considered that the note of appeal was lacking in specification. It did not give fair notice to the respondents of the issues the appellant wished the Tribunal to consider. The Tribunal could not allow the appeal to proceed based on the note of appeal as drafted. It was regrettable that the appellant had been unable to secure legal representation, but party litigants must comply with the procedures of the Tribunal to ensure fairness to all. Therefore, the Tribunal upheld the first respondents’ preliminary plea, dismissed the appeal and found the appellant liable in the expenses of the first respondent and of the Tribunal.
Six complaints were made by the Council of the Law Society of Scotland against John Gerard O’Donnell, solicitor, Glasgow. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect of six complaints: specifically in relation to complaint DC/11/05, his unreasonably delaying to respond to the reasonable enquiries of the complainers; between 18 June and 18 July 2007 his unreasonable delay/failure to respond to requests, written and verbal, from firm A, the solicitor who took over acting for his client, Bank 1; his failure to comply with the Guidelines on Mandates 1998 issued by the complainers; his failure to comply with a letter of obligation given to firm B to deliver two discharges of inhibition, within seven days of 29 August 2008; between 26 March 2008 and January 2011 his unreasonable delay/failure to respond to requests from and to return title deeds to Mr H, the solicitor acting on the other side of a potential commercial property transaction; his misleading Ms I by expressly or impliedly suggesting in his letter of 3 June 2009 that he was the partner of the firm of John G O’Donnell when he knew that was not the case and that effective as of 1 June 2009 his practising certificate had been restricted in terms of a prior determination of the Tribunal; his misleading Mr Q by making a similar representation in his letter of 25 August 2009; his failure to act in the best interests of his client, Mr M by failing to make any meaningful progress or take significant active steps to progress his personal injury claim between August 1994 and July 2002 when the file was taken over by his business partner; between August 1994 and May 2002 the deliberate misleading of Mr M and/or his mother, Mrs P, on numerous occasions, in relation to the progress that was being made on his case and in particular that he was attending to the necessary work when he was not; his unreasonable delay/failure to respond to the reasonable requests of the trustee between 9 August 2007 and 31 January 2011; his unreasonable failure/delay from 8 August 2007 to 16 November 2007 to respond to the reasonable enquiries of the trustee; in relation to complaint DC/11/26, his failure to comply with an undertaking given to firm I to deliver the appropriate SDLT form; his unreasonable delay in responding to the reasonable enquiries of the complainers during the period 9 October 2009 to 10 August 2010; in relation to complaint DT/15/29, his behaviour contrary to rules 1, 5 and 7 of the Code of Conduct for Scottish Solicitors 2002; his behaviour contrary to the terms of rule 1 of the schedule attached to the Solicitors (Scotland) (Standards of Conduct and Practice) Rules 2008; his actings contrary to the common law principle of honesty and integrity expected of a Scottish solicitor; his failure to properly reply timeously or at all to the reasonable enquiries made of him by the complainers; in relation to complaint DT/16/07, his actings contrary to the basic principle of honesty and integrity expected of Scottish solicitors and his failure unreasonably to respond to the reasonable enquiries of the complainers; in relation to complaint DT/16/08 his actings contrary to the basic principle that a solicitor should be a person of honesty and integrity and his failure to reply to the reasonable enquiries of the complainers; and in relation to complaint DT/16/30, his actings contrary to the basic principle of honesty and integrity expected of practising Scottish solicitors, his actings contrary to rule B1.2 of the Law Society of Scotland Practice Rules 2011 and his unreasonable failure to respond to the reasonable enquiries of the complainers.
The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland.
Essential qualities of a solicitor are honesty, truthfulness and integrity. It is imperative, if the public are to have confidence in the legal profession, that solicitors maintain the standards of conduct expected of competent and reputable solicitors. The respondent’s conduct included serious and reprehensible departures from those standards at the most serious end of the scale. Accordingly, the Tribunal found him guilty of professional misconduct, and considered that this was so serious that the only suitable sanction was strike off. The respondent was guilty of dishonesty. His behaviour represented a course of conduct over a significant period of time, involving numerous clients. The misconduct was of different varieties which were all likely to damage the reputation of the profession. He had failed to show any remorse and did not appear to have any insight into his conduct. If he were allowed to continue to practise he would be a significant risk to the public. In view of the all of the foregoing, the Tribunal considered that the respondent was no longer a fit person to be a solicitor.
The Tribunal awarded the secondary complainer £4,500 in compensation.
Hearings in this case took place on 28 October 2011, 20 December 2016, 15 February 2017 and 7 September 2017. The Tribunal agreed on 19 February 2019 that the decisions could be published.
Paul Kevin O’Donnell
A s 53(1)(b) complaint was made by the Council of the Law Society of Scotland against Paul Kevin O’Donnell, solicitor, formerly of Cambuslang, Glasgow. The Tribunal found that the respondent had been convicted by a court of an act involving dishonesty and that accordingly s 53(1)(b) of the Solicitors (Scotland) Act 1980 applied. The Tribunal ordered that the name of the respondent be struck off the roll of solicitors in Scotland.
The Tribunal considered that the conviction for embezzlement, which disclosed a course of dishonest conduct involving a total of £21,485 of clients’ money over a two year period, was incompatible with being a solicitor. Solicitors belonged to a profession which required high standards of ethical conduct. Members of the public had to have confidence that solicitors were trustworthy and honest and that their integrity was beyond question. Membership of the profession was a privilege. Solicitors undertook a duty throughout their professional lives to conduct their client’s affairs to their utmost ability and with complete honesty and integrity. Clients and colleagues should be able to expect these qualities of every solicitor as a matter of course.
A complaint was made by the Council of the Law Society of Scotland against Paul Kevin O’Donnell, solicitor, formerly of Cambuslang, Glasgow. The Tribunal found the respondent guilty of professional misconduct. He had taken cash payments totalling £27,955 from clients. He kept these and failed to disclose them to his employer or record them on the clients’ ledgers. The Tribunal censured the respondent.
Dishonesty with clients’ money was one of the most serious matters the Tribunal dealt with. Solicitors belonged to a profession which required high standards of ethical conduct. Members of the public had to have confidence that solicitors were trustworthy and honest and that their integrity was beyond question. The respondent’s conduct fell far short of the accepted ethical standards of the profession and he was therefore guilt of professional misconduct.
Three cases called against this respondent on 7 November 2018. Having made an order to strike off in relation to complaint 2018/1809, the Tribunal considered that its powers were limited by s 53(3A)(a) of the Solicitors (Scotland) Act 1980. In relation to a former solicitor who had been struck off the roll, the disposals which the Tribunal could impose were laid out in s 53(2)(bb)-(e). The Tribunal noted that the public was already protected by the order to strike off. There was significant overlap in terms of the conduct which was the subject of this complaint and the conduct which led to the conviction the subject of complaint 2018/1809. In these circumstances, the Tribunal considered that the appropriate sanction was censure.
In the third complaint against the same respondent, the Tribunal found him guilty of professional misconduct in that he withdrew from acting for the secondary complainer without informing him, having previously told him that he did not have to attend a diet of debate, with the result that decree passed against the secondary complainer. The Tribunal imposed a censure and a fine of £2,500.
John Kevin Quinn
A complaint was made by the Council of the Law Society of Scotland against John Kevin Quinn, solicitor, Strathaven. The Tribunal found the respondent guilty of professional misconduct, singly in respect of his breach of rule B6.13.1(a) of the Law Society of Scotland Practice Rules 2011 and in cumulo in respect of his breach of rules B6.4.1, B6.1.5, B1.2 and B6.12.1 of the Practice Rules.
The Tribunal censured the respondent and directed that any practising certificate held or issued to the respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer or successive employers as may be approved by the Council or its Practising Certificate Subcommittee and that for an aggregate period of at least two years.
The respondent operated his firm with significant deficits on the client account between May 2012 and April 2015. He failed to settle outlays with third parties timeously. He failed to rectify breaches promptly despite being aware of them. He submitted inaccurate accounts certificates. When considering sanction, the Tribunal balanced the material provided in mitigation with the protection of the public and the reputation of the profession. The Tribunal censured the respondent and restricted his practising certificate for two years.