Scottish Solicitors' Discipline Tribunal

Reports relating to Alexander Gilmour Malcolm; Messrs Robertson & Ross; Messrs Carruthers & Co; David George Robertson

The Journal, November 2007, page 44

Alexander Gilmour Malcolm

A complaint was made by the Council of the Law Society of Scotland against Alexander Gilmour Malcolm, solicitor, formerly of 23 Tarvit Drive, Cupar and now at 14 Melgund Place, Lochgelly, Fife (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to actively prosecute a claim on behalf of his clients, his failure to deal competently with the matters at hand, his disguising his incompetence by his failure to inform his clients as to progress or lack thereof with the claim, his failure to reply to the repeated enquiries made of him by his clients, his failure to submit a competent proper Legal Aid application and his allowing an excessive, inordinate and unreasonable delay to occur in the prosecution of his client’s claim, all contrary to articles 5 and 7 of the Code of Conduct for Solicitors Holding Practising Certificates issued by the Law Society of Scotland in 1989. The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland.

A joint minute was lodged which admitted the majority of the facts in the complaint. Evidence was led with regard to the remainder of the complaint. After hearing evidence, the Tribunal, by a majority decision, was not satisfied beyond reasonable doubt that the respondent acted in a dishonest and deceptive fashion by intercepting his client’s letter of complaint. The Tribunal noted that the respondent had already recently had his practising certificate restricted twice in connection with two previous sets of findings against him. It was clear that the respondent had been involved in a persistent course of conduct over a period of years of not dealing with clients’ business properly or keeping clients properly informed. In this case the respondent had failed to operate professionally as a lawyer over a period of 12 1/2 years in connection with his clients, Mr and Mrs X. He had also not advised his clients of the correct position with regard to legal aid, and his failure to obtain legal aid on their behalf and to progress their claim properly could have had serious consequences for them. In the previous findings the respondent had misled other clients and not properly dealt with their business. The Tribunal considered that the respondent had shown a wilful and reckless disregard for his clients over a number of years and accordingly considered that he was not a fit and proper person to remain on the Roll of Solicitors in Scotland.

Appeal under s 42A: Messrs Robertson & Ross

An appeal under s 42A was made by Messrs Robertson & Ross, Solicitors, 7 Causeyside Street, Paisley (“the appellants”) against a determination and direction made by the Council of the Law Society of Scotland that the appellants had provided an inadequate professional service to a client. The Tribunal varied the determination and direction and directed in terms of s 42A(2)(c) of the Solicitors (Scotland) Act 1980 that the appellants at their own expense refer their files to law accountants within 21 days of the date of the decision in order that fees for the work carried out prior to legal aid being granted could be calculated at legal aid rates, and determined in terms of s 42A(2)(a)(ii) of the said Act that the fees to which the appellants are entitled for pre-legal aid work should be at legal aid rates abated by 25% and further directed that the appellants, in terms of s 42A(3) of the said Act, repay to the lay complainer the sum of £31,200 (comprising £200 received on 27 April 1994 and £31,000 on 14 April 1999) plus interest at 5.34% per annum applied twice annually on a compound basis on the said sums from receipt until repayment, after deduction of (a) £20,000 paid on 3 June 2003 and (b) the abated fee, all within three months of the decision being notified to them.

The appellants and the Society made a joint motion to have the determination and direction varied. The lay complainer had no objection.

Appeal under s 42A: Messrs Carruthers & Co

An appeal was made by Carruthers & Co, solicitors, 2/4 & 6 Pitt Lane, Lerwick (“the appellants”) against a finding of inadequate professional service by the Law Society of Scotland in relation to the direction that the appellants’ fees should be reduced to nil, and that the appellants refund any fees and outlays already paid and repay the sum of £200 to the lay complainer and pay the lay complainer £250 by way of compensation. The Tribunal quashed the determination and the direction of the Society.

The Tribunal heard submissions from the appellants that the procedure followed by the Society in reaching their decision on the determination was contrary to the principles of natural justice and fundamentally flawed. In this case, the lay complainer produced nine pages of comments including an analysis of the reporter’s report, and this was considered by the Society’s committee without the appellants having been given a chance to comment on it. The committee’s report did not indicate that they did not find the lay complainer’s comments to be of importance, and the Tribunal considered that in this case the comments of the lay complainer were extensive and were material of importance. The Tribunal accordingly concluded that in this case there had been a breach of natural justice in not allowing the appellants to comment upon matters of materiality affecting the decision making process. The Tribunal accordingly quashed the determination and direction of the Society.

The Tribunal, however, is not suggesting that in every case it will be necessary for comments made by one side subsequent to the reporter’s report to be copied to the other side. If a case manager takes the view that there is nothing of importance in the representations received from either side, then these comments should not go to the committee or the committee should indicate that they do not consider them of any consequence. It will be for the Society to give consideration to how to achieve fairness when extensive comments or material of importance are received after the report has been issued.

David George Robertson

A complaint was made by the Council of the Law Society of Scotland against David George Robertson, solicitor, 34 Rhannan Road, Glasgow (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his misappropriation of £10,000 from his client, his misleading another client by giving her the false impression that he had settled her reparation claim in the sum of £10,000 when this was not the case, and his preparing a will on behalf of another client in which a significant monetary benefit was conferred upon him. The Tribunal ordered that the name of the respondent be struck from the Roll of Solicitors in Scotland.

The Tribunal appreciated the fact that the respondent had taken the trouble to appear before the Tribunal and explain the circumstances surrounding what had happened. The Tribunal also took account of the fact that the respondent had fully cooperated with the Society and entered into a joint minute. The fact remained however that the respondent embezzled £10,000 of clients’ money and it was only discovered when his partners found out. In all the circumstances the Tribunal considered that the only option open to it was to strike the respondent’s name from the Roll of Solicitors in Scotland.

PUBLICATION OF FINDINGS

A question has been raised over the timing of the report of the decision in Belton, Pervez and Bell in the September Journal, as the Tribunal's decision was dated December 2005 and Mr Belton died in January 2007. Because an appeal was lodged, the Tribunal was unable to issue its final findings until the appeal was disposed of. The appeal was ultimately abandoned, following which the Tribunal released its report to the Journal in February. Any distress caused by the posthumous publication of the report is regretted.