Scottish Solicitors' Discipline Tribunal

Reports relating to Michael McNiven; Messrs Stirling & Mair; William Morton McCulloch

The Journal, June 2004, page 53

Michael McNiven

A complaint was made by the Council of the Law Society of Scotland against Michael McNiven, Solicitor, The Coach House, 22 St John’s Road, Corstorphine, Edinburgh (“the Respondent”). The Tribunal found the Respondent guilty of professional misconduct in respect of his failure to complete the required number of continuing professional development hours for the 1998/1999 practice year and failure to submit a continuing professional development record in relation to practice years 1999/2000, 2000/2001 and 2001/2002 and his unconscionable failure to reply to correspondence from the Law Society and his failure to obtemper statutory notices. The Tribunal Censured the Respondent, Fined him in the sum of £3,000 and Directed in terms of section 53(5) of the Solicitors (Scotland) Act 1980, that for a period of three years, 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 or consultant to such employer as may be approved by the Council of the Law Society.

The Tribunal were gravely concerned with regard to the Respondent’s failure to complete his continuing professional development hours for four years in a row. It is imperative, if the public is to have confidence in the profession, that solicitors undertake the necessary continuing professional development and keep a record of the continuing professional development undertaken. The Respondent also failed to reply to correspondence and statutory notices from the Law Society, which hampers the Law Society in the performance of their statutory duties and brings the profession into disrepute. The Tribunal considered that it was necessary, in order to protect the public, to impose a restriction on the Respondent’s practising certificate and given the Respondent’s reckless disregard for the authority of the Law Society, the Tribunal also imposed a fine of £3,000.

Messrs Stirling & Mair, Solicitors

Appeal under section 42A

An appeal was lodged with the Scottish Solicitors’ Discipline Tribunal by Messrs Stirling & Mair, Solicitors, 28 High Street, Johnstone (“the Appellants”) against the Finding by the Council of the Law Society of Scotland (“the Law Society”) dated 2 October 2003 that the Appellants had provided an inadequate professional service in relation to their clients and a Direction that the Appellants should pay their clients £500 by way of compensation.

The Determination made by the Law Society was that the Appellants had provided an inadequate professional service in that they had failed to prepare adequately and to ensure that the complainers would be able to park on common property. The Tribunal had to decide whether, on the facts found and on the basis of the reasons given, the Committee was entitled to reach this decision. In terms of section 53B the Tribunal can quash, vary or confirm the Law Society’s Determination. In this case the Tribunal were concerned that the Law Society’s Determination failed to identify the true grounds of the inadequate professional service provided by the Appellants. The Tribunal considered that it may well have been that the Appellants did provide an inadequate professional service to the Complainers but the Tribunal was not in possession of sufficient papers or facts to make any finding consistent with that of the Committee or for the reasons put forward by the Law Society Committee. The Determination made and the reasons put forward by the Law Society to support a Finding of inadequate professional preparation service was/were not sustainable on the facts. The Tribunal felt that although it was competent to vary the Determination of the Law Society, any variation would have been so extensive it would have had to completely rewrite the decision and it had insufficient information from the evidence available to do this. Further, any such rewriting of a decision by the Tribunal would be likely to have found that the inadequate service provided by the Appellants was one of reporting to the complainers on the title terms. Such rewriting would be prejudicial to the Appellants as they would have had no notice of this ground of complaint. In the circumstances the Tribunal’s only option was to quash the determination of the Law Society and sustain the appeal.

William Morton McCulloch

A Complaint was made by the Council of the Law Society of Scotland against William Morton McCulloch, Solicitor, 31 Carden Place, Aberdeen (“the Respondent”). The Tribunal found the Respondent guilty of professional misconduct in respect of his unreasonably misleading his client with regard to the raising and pursuing of a court action and his making payments to his client purportedly in satisfaction of a court decree for payment when in actual fact these payments were made from himself, contrary to article 7 of the Code of Conduct for Solicitors Holding Practising Certificates 1989. The Tribunal Censured the Respondent.

The Tribunal takes a serious view of any kind of dishonesty. The Tribunal however considered this to be an exceptional case given the length of time that it had taken for the client to take a complaint to the Law Society and given the fact that the client was not willing to appear at the Tribunal. The Tribunal also took account of the fact that the Respondent had fully co-operated with the fiscal and had entered into a joint minute. The Tribunal also noted a previous finding of misconduct against the Respondent in 1997 where a restriction on the Respondent’s practising certificate had been imposed for a period of five years and until such time as the Respondent satisfied the Tribunal that he was fit to hold a full practising certificate. This restriction is still in force and would provide adequate protection to the public. In the circumstances, the Tribunal considered that a censure would be a sufficient penalty.