Scottish Solicitors' Discipline Tribunal

Reports relating to Alexander Muir; Deryck de Maine Beaumont; Norman James Cowie

The Journal, December 2006, page 47

Alexander Muir

A complaint was made by the Council of the Law Society of Scotland against Alexander Muir, solicitor, Flat G/R, 36 Darnley Road, Glasgow (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his unreasonable delay in registering a title in favour of his client and a standard security in favour of Northern Rock plc. The Tribunal censured the respondent.

Given that there was failure to record the disposition and standard security for a period of two and a half years, the Tribunal did accept that this amounted to professional misconduct. It was however very much at the lower end of the scale as it only involved one client and one transaction. The Tribunal noted that the respondent had been a solicitor for 20 years and this was his first time before the Tribunal. The Tribunal also took into account a medical report and the fact that the respondent had entered into a joint minute. The Tribunal considered that a censure would be sufficient penalty.

Deryck de Maine Beaumont

Two complaints were made by the Council of the Law Society of Scotland against Deryck de Maine Beaumont, solicitor, Balnagard, Pitlochry (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to settle timeously the business account of a reporter whom he had instructed to carry out work on behalf of his client and his failure to reply to correspondence from the reporter concerning payment of her account. The respondent was found not guilty of professional misconduct in respect of his failure to settle the sum of £616.88 due by him to Faculty Services Ltd. The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that for a period of three years with effect from 31 March 2006, 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 as may be approved by the Council or the Practising Certificate Committee of the Council of the Society.

The Tribunal heard evidence and was satisfied beyond reasonable doubt that the respondent had instructed the reporter to prepare the report and that he was liable for her fee. The respondent failed to make payment of this fee for a period of three years and eight months, which the Tribunal considered clearly amounted to professional misconduct. The respondent also failed to reply to her correspondence between 2001 and 2004, which is clearly an unwarranted failure and a professional discourtesy and amounts to professional misconduct. In connection with the Faculty Services fee notes, the Tribunal could not be satisfied from the evidence whether or not legal aid cover was in place in connection with two of the fee notes. One of the fee notes had now been paid by the Scottish Legal Aid Board and cover was clearly in place. The Tribunal did not find the evidence in respect of this matter to be sufficient. The witness for the Society indicated that if legal aid cover was in place there was no obligation on the instructing solicitor to pay counsel’s fees. The Society did not lead any evidence to suggest that the statutory position was any different from this. The Society also did not lead any evidence to show that after a period of time, if the fee was not paid, the responsibility became the instructing solicitor’s. There were no averments in the complaint with regard to unacceptable delay on the part of the respondent in sorting matters out. In this particular case the Tribunal was not satisfied beyond reasonable doubt on the basis of the evidence that the respondent’s conduct amounted to professional misconduct. That is not to say however that there is no liability on an instructing solicitor to pay counsel’s fees where legal aid cover is in place.

The Tribunal noted three previous findings of professional misconduct against the respondent, some for analogous matters. The Tribunal further noted that in the most recent findings against the respondent he was warned that if he appeared before the Tribunal again on similar matters he would be likely to have his practising certificate restricted. The Tribunal was of the view that the number of recent findings of professional misconduct clearly showed that the respondent had an unsound business practice, and in order to protect the public the Tribunal considered that the only option was to restrict the respondent’s practising certificate for a period of three years. The Tribunal ordered the restriction to run from 31 March 2006 to allow the respondent time to dispose of his practice.

The Tribunal’s decision was appealed to the Court of Session. The appeal was dismissed on 26 May 2006.

Norman James Cowie

A complaint was made by the Council of the Law Society of Scotland against Norman James Cowie, solicitor, Cowie & Co, 198 High Street, Cowdenbeath, Fife (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to respond timeously, openly and accurately to reasonable enquiries made of him by the Society. The Tribunal censured the respondent.

The Tribunal was satisfied that the notices and letters had been received by the respondent from the Society and that the respondent had failed to respond, which had caused distress and inconvenience to his clients. In the circumstances the Tribunal was satisfied, beyond reasonable doubt, that the respondent’s conduct amounted to professional misconduct. The Tribunal however considered that this was only one instance of failure to reply in respect of one client and fell very much at the lower end of the scale. The Tribunal noted that the respondent was already working under a restricted practising certificate imposed by the Tribunal in December 2005, and considered that a censure would be a sufficient additional penalty.