Scottish Solicitors' Discipline Tribunal

Reports relating to Michael Charles Gray; Richard Douglas McKenzie Shepherd

The Journal, January 2006, page 47

MICHAEL CHARLES GRAY

Three complaints were made by the Council of the Law Society of Scotland against Michael Charles Gray, solicitor, formerly of 115 Morrison Street, Edinburgh, thereafter at 30A Windsor Street, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to reply to the reasonable enquiries made of him by the Society concerning the affairs of numerous clients, his failure to implement mandates intimated to him, his failure to complete satisfactorily conveyancing transactions in which he was involved, his failure to deliver title deeds and to respond to enquiries made of him by a fellow solicitor, his failure to carry out work for which he had obtained a fee in advance and his failure to obtain sufficient funds timeously from the Legal Aid Board to meet a professional account and failure to respond to enquiries made of him by a professional witness and delay in settlement of the account. The Tribunal ordered that the name of the respondent Michael Charles Gray be struck off the Roll of Solicitors in Scotland. The Tribunal also made numerous orders under section 53C(2) of the Solicitors (Scotland) Act 1980 in respect of the respondent’s failure to comply with determinations and directions of the Society made under section 42A within the period specified in the notice, intimated to the respondent in terms of section 42B of the said Act.

The respondent did not appear at the Tribunal. After hearing evidence the Tribunal agreed to conjoin all three complaints and was satisfied beyond reasonable doubt that the respondent’s conduct amounted singularly and in cumulo to professional misconduct. The Tribunal was also satisfied beyond reasonable doubt that the respondent had failed to comply with the determinations and directions of the Society. The Tribunal noted previous findings of professional misconduct against the respondent. The Tribunal was extremely concerned by the respondent’s total disregard for the Society and for the interests of his clients. The Tribunal considered the respondent’s cavalier attitude disgraceful and dishonourable. The Tribunal was of the view that there is no place in the profession for a person who acts in this way and had no hesitation in ordering that the respondent’s name be struck from the Roll of Solicitors in Scotland.

RICHARD DOUGLAS
McKENZIE SHEPHERD

A complaint was made by the Council of the Law Society of Scotland against Richard Douglas McKenzie Shepherd, solicitor, 1 East Craibstone Street, Aberdeen (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to fully protect the interests of his clients and his acting in reckless disregard of these interests in settling conveyancing transactions; and his failure to report timeously to his purchasing and lending clients about his failure to obtain executed dispositions after settlement, with the consequence that there was considerable delay in registering these dispositions and the relative standard securities in the Land Register. The Tribunal censured the respondent and fined him the sum of £600.

The Tribunal did not consider that the averments in paragraphs 8.2 and 8.3 in the complaint amounted to professional misconduct as the Tribunal was not satisfied that the breach of the Accounts Rules, in this case, went as far as to amount to serious and reprehensible behaviour sufficient to be considered misconduct. In relation to failures to verify the identity of the clients the Tribunal was of the opinion, in light of submissions made on behalf of the respondent, that these failures were not sufficiently serious and reprehensible and fell short of professional misconduct. In relation to the failures to report to lenders the Tribunal was not persuaded that the respondent was engaged in a deliberate course of misrepresentation or that the failures were materially prejudicial and therefore did not find the respondent guilty of professional misconduct in this regard. However the Tribunal considered that the remaining two averments in the complaint separately amounted to professional misconduct. It is the duty of a solicitor acting for a purchaser and lender in a conveyancing transaction to act in such a way as to protect the interest of his clients at all times. It is the duty of such a solicitor at the stage of settlement of the transaction, in circumstances where there are no concluded missives between the purchaser and the seller, to check with the solicitor acting for the seller that he has in hand an executed disposition for the property that can be exchanged for the price before settlement funds are sent to the seller’s solicitor. In undertaking these conveyancing transactions the respondent has a duty in terms of the Code of Conduct for Solicitors Holding Practising Certificates to act in the best interests of his clients and provide an adequate professional service and the respondent had failed in these duties.

The Tribunal noted that the matter had been hanging over the respondent for some time and the Tribunal took account of the references lodged and of the fact that the actings of another solicitor had been a factor in the respondent’s failings, that there had been no complaint by the respondent’s clients and that ultimately there was no loss suffered by them as the dispositions and standard securities were eventually recorded. In these particular circumstances the Tribunal considered that a censure and a small fine was merited.

The Tribunal’s decision in respect of the failure to find misconduct in connection with the failure to report to lenders was appealed by the Society to the Court of Session but the appeal was refused.