Scottish Solicitors' Discipline Tribunal
Reports relating to Richard Hutchison; Charles David Jackson; Jacqueline Marie Johnston; Raymond George Mallon; Ruben Valaydon Murdanaigum
A complaint was made by the Council of the Law Society of Scotland against Richard Hutchison, of Malcolm & Hutchison, Airdrie. The Tribunal found the respondent guilty of professional misconduct singly in respect of his failure to implement a mandate for a period of nine months, and in cumulo in respect that he (a) failed to communicate effectively with Mr A throughout the nine-month period as to the position in relation to complying with the mandate, (b) misled the SLCC by indicating that he would deliver the files to Mr A on Friday 31 March 2017 and failed to correct the position when he did not do so, (c) failed to communicate effectively with the SLCC as he did not call them as requested at the end of March 2017/beginning of April 2017 to confirm that he had delivered the files, and (d) failed to communicate effectively with the complainers in relation to his failure to deliver the files and implement the mandate.
The Tribunal censured the respondent.
The Tribunal has made it clear on a number of occasions that it is imperative that solicitors fulfil their professional obligations and respond properly to mandates. The respondent’s failure to do so constituted professional misconduct. The other averments of misconduct were part and parcel of failing to obtemper the mandate and the Tribunal found these to be professional misconduct in cumulo with each other and with failing to obtemper the mandate.
Charles David Jackson
A complaint was made by the Council of the Law Society of Scotland against Charles David Jackson, c/o Miller Beckett & Jackson Ltd, Glasgow. The Tribunal found the respondent guilty of professional misconduct in cumulo in respect that he failed to comply with the Money Laundering Regulations by not procuring that full and proper client identification checks were carried out on companies represented by his firm; and failed to comply with obligations under part 7 of the Proceeds of Crime Act 2002, part 3 of the Terrorism Act 2000, and the Money Laundering Regulations 2007; and individually in respect that he failed adequately to account for client monies and allowed these to be co-mingled across a number of different matters due to inadequate segregation of funds in the client account, in breach of the rules; and failed without reasonable excuse to answer a lawful citation to appear as a witness in the Court of Session on 21 August 2013.
The Tribunal censured the respondent and fined him £6,000.
The respondent was the contact for the client and companies in question. Although some conveyancing was carried out by another partner, he had knowledge of all transactions and carried some of them out himself. He failed to ensure that full and proper identification checks were carried out. He failed to undertake proper risk assessments or sufficient enquiry as to the beneficial ownership of the companies. Failure by solicitors to comply with these obligations put the public at risk.
As cashroom manager of his firm, the respondent failed adequately to account for client monies and allowed these to be co-mingled across several different matters. Inter-client transfers took place without written authority. If solicitors are to continue to enjoy public trust regarding their financial affairs, they must have careful regard to the accounts rules. Following these rules protects the clients and the solicitor.
Regarding the failure to appear as a witness, all persons must comply with a lawful citation but the onus on a solicitor is even higher. If there was any element of doubt as to whether he was excused attendance, he should have made enquiries to ascertain the position in clear terms. The Tribunal was reassured that the respondent immediately attended court when the matter was drawn to his attention, but it was most unsatisfactory that the situation arose. The damage to the solicitor’s reputation and that of the profession by such actions is significant. Solicitors must be trusted to attend court when properly cited.
Jacqueline Marie Johnston
A complaint was made by the Council of the Law Society of Scotland against Jacqueline Marie Johnston, solicitor, Livingston. The Tribunal found the respondent guilty of professional misconduct in respect of her breaches of rules B6.7.3, B6.7.4 and B6.13.3.
The Tribunal censured the respondent and fined her £10,000.
The respondent failed to keep properly written up accounting records necessary to show all of the firm’s dealings with clients’ and other money, and in particular showing the true financial position. She also failed to use reasonable endeavours to advance and maintain the competence of all officers and employees of the firm and failed to supervise them and to train them.
Firms must be able to demonstrate the true financial position every day. Solicitors are entrusted with clients’ money and need to deal with it responsibly. It should be possible for someone to come into a practice and understand the financial position based on the accounting records. Proper supervision and closing the daybooks daily reduces the risk of manipulation.
Solicitors have a special privilege in being allowed to handle clients’ money. If solicitors are to continue to enjoy the public trust in regard to their financial affairs, they must have careful regard to all the requirements and obligations contained in the accounts rules. A solicitor should always be able to account to every client and this requires the solicitor to maintain full and accurate records. The detailed provisions of the rules ensure that the funds of each client are separately safeguarded, but also enable the solicitor and the Society to satisfy themselves at any time that client funds are securely held and accounted for.
Raymond George Mallon
A complaint was made by the Council of the Law Society of Scotland against Raymond George Mallon, solicitor, Port Glasgow. The Tribunal found the respondent guilty of professional misconduct (a) singly in respect that he misled counsel as to the grant of sanction by the Scottish Legal Aid Board for the preparation of an opinion by her; (b) in cumulo with (a) and with each other in respect that he (i) failed to settle counsel’s fee despite repeated reminders and (ii) failed to communicate effectively with Faculty Services regarding the non-payment of counsel’s fee; and (c) singly in respect that he failed to respond promptly and efficiently to correspondence and statutory notices received from the Council in respect of its regulatory function.
The Tribunal censured the respondent and directed that any practising certificate held or to be issued to him shall be subject to a restriction limiting him to acting as a qualified assistant to and to being supervised by such employer or successive employers as may be approved by the Council or its Practising Certificate Subcommittee for five years.
With regard to the misleading of counsel, the Tribunal was satisfied that the respondent had allowed his integrity to be called into question in contravention of rule B1.2 of the Practice Rules 2011. The respondent failed to pay counsel’s fee despite repeated reminders and failed to communicate effectively with Faculty Services. He also failed to respond promptly and efficiently to correspondence and statutory notices from the Council. Solicitors have a duty to cooperate with the Society exercising its regulatory function. If the public is to have confidence in the profession, then it must also have confidence that the Society can regulate the profession appropriately. In this case, the respondent had failed to respond to correspondence with third parties. That failure had led to the Society’s investigation. The respondent had then gone on to fail to respond to the Society as regulator. This conduct clearly brought the profession into disrepute.
The Tribunal noted the respondent’s failure to engage with the disciplinary process and the two previous findings of misconduct against him. Despite being restricted on the last occasion, the respondent had persisted in analogous misconduct. This brought the profession into disrepute. Uppermost in the Tribunal’s mind was the question of the protection of the public. Accordingly, the Tribunal concluded that the appropriate disposal was to censure the respondent and to restrict his practising certificate.
Ruben Valaydon Murdanaigum
A complaint was made by the Council of the Law Society of Scotland against Ruben Valaydon Murdanaigum, c/o Rubens, Lochgilphead. The Tribunal found the respondent guilty of professional misconduct individually in respect that he maintained his client account in deficit; he failed between February and April 2016 to carry out any postings on his practice’s books and records; he failed between 1 August 2014 and 30 April 2016 to carry out any firm account, client account or invested funds reconciliations; and submitted an accounts certificate which he knew or ought to have known was materially inaccurate; and in cumulo that he failed to comply with the Money Laundering Regulations.
The Tribunal censured the respondent and fined him £2,500.
The respondent maintained his client account in deficit for 19 months to the extent at one stage of £8,706.86. He failed for three months between February and April 2016 to carry out any postings on the practice’s books and records. For a period of 20 months he failed to carry out any firm, client or invested funds reconciliations. These failings inevitably led to his inability to submit an accurate accounts certificate. The Tribunal accepted that the respondent had not knowingly, deliberately or dishonestly submitted a false accounts certificate. However, as cashroom manager, he ought to have known that the certificates were not accurate and therefore should not have been submitted. He also failed to comply with the Money Laundering Regulations by failing to maintain records of his actions.