Scottish Solicitors' Discipline Tribunal

Reports relating to Michael Alan Grant McNiven; William Meechan

The Journal, July 2007, page 47

Appeal under section 42A – Michael Alan Grant McNiven

An appeal under s 42A was made by Michael Alan Grant McNiven, The Granary, Skirling Mill, by Biggar (“the appellant”) against a finding of the Council of the Law Society of Scotland dated 28 February 2006, that the appellant had provided an inadequate professional service in relation to his clients Mr & Mrs S (“the lay complainer”) and a direction that the appellant should limit his fees and outlays and pay compensation of £500 to the lay complainer. The Tribunal quashed the determination and direction.

The appellant obtained an expert conveyancing opinion and the Society then withdrew opposition to the appeal. The lay complainer however still opposed the appeal and was granted adjournments on two occasions to allow him to consider his position, obtain representation and lodge whatever documentation he wished with the Tribunal. The lay complainer did not obtain representation or lodge any further documentation, nor did he appear at the Tribunal. He instead asked for another adjournment. The Tribunal refused the motion for an adjournment and allowed the appeal. The appellant requested that expenses be awarded against the lay complainer. The Tribunal however considered that the lay complainer was in an unusual position when the Society withdrew opposition to the appeal. In the circumstances the Tribunal did not consider that the lay complainer’s actions were sufficiently serious to result in a lay member of the public being penalised by an award of expenses against them.

William Meechan

A complaint was made by the Council of the Law Society of Scotland against William Meechan, solicitor, 19 Waterloo Street, Glasgow (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his misleading fellow solicitors and their client by representing to them that he was in funds to the extent of £15,000, well knowing that he did not hold cleared funds and that their client’s agreement to settle his claims against his former employers was conditional upon the respondent holding cleared funds in his client account to permit settlement by one single payment within the timescale agreed, and thereby inducing them to advise their client to settle his claim in ignorance of the true position and to discharge a hearing which he would not otherwise have agreed to discharge; his failing to advise his fellow solicitors that his clients had stopped their cheque, thus allowing his fellow solicitors to continue to adjust the settlement terms in the belief that he held funds to settle when he well knew that the settlement proceeds were not held by him; and his delivering up to ACAS the executed COT3 agreement when he knew that the terms of the agreement would not be implemented by his clients so far as the timing of the payment of the funds was concerned. The Tribunal censured the respondent and fined him in the sum of £2,500.

The Tribunal heard evidence from witnesses and was satisfied beyond reasonable doubt on the basis of the evidence that the respondent’s perception at the time was that the other firm of solicitors would understand him to have been in possession of cleared funds before they would have agreed to discharge the employment tribunal hearing. The Tribunal considered that the respondent had been reckless and had taken a chance on the basis that he thought that the cheque would clear. The Tribunal considered that the respondent must have been aware that if he had told the other firm of solicitors the true position they would not have discharged the tribunal hearing date. Rule 9 of the Code of Conduct states that solicitors shall not knowingly mislead colleagues, or where they have given their word, go back on it. It is imperative that solicitors act with fellow solicitors in a manner consistent with persons having mutual trust and confidence in each other. The respondent adjusted the terms of the COT3 after he knew that his clients’ cheque had been stopped and he did not advise his fellow solicitor of his client’s change of mind. The Tribunal were particularly concerned to note that when the respondent received the letter from his client, which made it quite clear that his client was not going to obtemper the terms of settlement, he still sent the COT3 form off to ACAS when he knew that there was no reasonable expectation that its terms could be implemented. He did this prior to advising his fellow solicitor of his client’s change of instructions. The Tribunal considered this an abuse of professional trust and contrary to the principles of openness, honesty and integrity. The Tribunal was accordingly satisfied beyond reasonable doubt that the respondent’s conduct singularly and in cumulo amounted to professional misconduct.

The Tribunal did not consider that there was any need to restrict the respondent’s practising certificate to protect the public. It was clear that the respondent was contrite and concerned with regard to what had happened and the Tribunal considered that it was unlikely that anything similar would happen again in the future. The Tribunal also took into account that the respondent had already made a payment of £9,000 by way of a wasted costs order, and considered that a fine of £2,500 would be appropriate.