Scottish Solicitors' Discipline Tribunal

Reports of cases relating to William Michael Lewis; Alistair George Kay; Alexander Ritchie Robertson; Richard Allan Sandeman; Malcolm Cameron

The Journal, April 2008, page 52

William Michael Lewis

A complaint was made by the Council of the Law Society of Scotland against William Michael Lewis, solicitor, 1 Hope Park Terrace, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to reply to the reasonable requests of the Society for information and his persistent failure to respond to the reasonable enquiries made of him by fellow agents and the Bank of Scotland. 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 1 April 2007 any practising certificate held or to be 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 Law Society of Scotland. The Tribunal made no finding of misconduct in respect of certain aspects of the complaint.

The Tribunal noted previous findings against the respondent dated 27 September 2006, and was extremely concerned by the respondent’s overall conduct as set out in the previous findings and in the complaints before the Tribunal on this occasion. The Tribunal also noted that despite the Tribunal’s chairman advising the respondent on 27 September 2006 that he should employ extra staff, it was clear from what the respondent advised the Tribunal at the hearing that he had not done anything about this. The Tribunal accordingly were not persuaded that the respondent was attempting to deal with his difficulties and make the necessary changes in his firm. The Tribunal could accordingly not be satisfied that the respondent would not reoffend, and considered that a restriction on his practising certificate was necessary in order to protect the public. The Tribunal ordered the restriction to run from 1 April 2007 to allow the respondent time to dispose of his business.

The Tribunal findings were appealed to the Court of Session. The appeal was later withdrawn but the court issued an interlocutor amending the start date of the restriction from 1 April 2007 to 1 September 2007.

William Michael Lewis

A complaint was made by the Council of the Law Society of Scotland against William Michael Lewis, solicitor, 1 Hope Park Terrace, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to comply with his obligation in terms of the Solicitors (Scotland) (Continuing Professional Development) Regulations 1993 by failing to submit a record for the practice years 2000-01 and 2003-04, and his failure to reply to correspondence sent to him by the Society in connection with his failure to comply with his obligations in terms of these regulations, his failure to reply to the reasonable enquiries of the Society in respect of three clients and his failure to return a substantial number of telephone calls made to him by one client. The Tribunal censured the respondent, fined him in the sum of £2,500 and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that any practising certificate held or to be issued to the respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to and to being supervised by such employer or successive employers as may be approved by the Council or the Practising Certificate Committee of the Council of the Law Society of Scotland, and that for a aggregate period of at least three years from 1 September 2007 and thereafter until such time as he satisfies the Tribunal that he is fit to hold a full practising certificate.

The Tribunal was very concerned that the restriction that was imposed by the Tribunal in respect of other matters on 16 November 2006 was still not in place. This previous decision had been appealed by the respondent, but the respondent gave an undertaking to the Tribunal that this appeal was to be withdrawn. The Tribunal was concerned that the respondent had not made arrangements for the disposal of the business and the handing over of clients’ affairs to others, and had continued to practise without having taken steps to address the problems leading to the previous findings of the Tribunal by taking on extra staff as suggested by the Tribunal. The Tribunal did not consider that the cases before it on this occasion were serious enough to consider a suspension or a strike off. The Tribunal noted that the public was already protected by the existing restriction of three years imposed by the Tribunal in November 2006. However, the Tribunal considered it imperative that the respondent work under supervision during his period of restriction and accordingly deemed it appropriate to impose an aggregate period of three years on his practising certificate. The Tribunal also considered it appropriate to require the respondent at the end of the three year period to satisfy the Tribunal that his health had improved sufficiently for him to be competent to practise again as a sole practitioner. The Tribunal considered that a fine of £2,500 in addition to the restriction was appropriate given the further failures to respond, coupled with the respondent’s failure to complete a record of his CPD in two different practice years.

Alistair George Kay

A complaint was made by the Council of the Law Society of Scotland against Alistair George Kay, solicitor, Kay & Co, Solicitors of 231A Union Street, Aberdeen  (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his failure to respond timeously, openly and accurately to the reasonable enquiries made of him by the Society and to statutory notices served upon him by the Society concerning complaints made against him. The Tribunal also found that the respondent had failed to comply with the determination and direction given by the Council of the Society under s 42A of the Solicitors (Scotland) Act 1980 within the period specified. The Tribunal directed that an order be issued under s 53C of the said Act, censured the respondent and fined him £1,000.

The Tribunal heard evidence and was satisfied beyond reasonable doubt that the respondent had failed to comply with the determination and direction of the Society in connection with a client and made an order under s 53C (2) of the Solicitors (Scotland) Act 1980.

The Tribunal was also satisfied beyond reasonable doubt that the respondent was guilty of professional misconduct in relation to his failure over a period of six months to give a detailed response to the Society despite reminders, coupled with his failure to respond to four statutory notices. The Tribunal considered that failure to respond to the Society timeously hampers the Society in the performance of its statutory duty and is prejudicial to the reputation of the legal profession. The Tribunal also noted that the respondent had not explained his failures to respond, and considered that a censure and a fine of £1,000 would be an appropriate penalty.

Alexander Ritchie Robertson

A complaint was made by the Council of the Law Society of Scotland against Alexander Ritchie Robertson, solicitor, Messrs Robertson Smith Solicitors, 148 Nethergate, Dundee (“the respondent”). The Tribunal refused the respondent’s motion for dismissal of the complaint as time barred and continued the case to a date to be afterwards fixed.

The Tribunal heard submissions from both parties and considered that the case raised interesting and difficult points. The Tribunal found that the Prescription and Limitation Act 1973 did not apply to the Tribunal proceedings. The Tribunal did not accept that it had power to dismiss a case because the Society had not properly applied its own policy. This would involve judging the reasonableness (in the Wednesbury sense) of the Society’s decision. There is nothing in the statute to give the Tribunal such a power and the Tribunal did not consider that it had jurisdiction to review a decision of the Society to prosecute a complaint or to decide as a matter of principle whether the Society had applied its own policy correctly. The Tribunal however considered that it did have an inherent jurisdiction to find a case is time barred, but the individual facts and circumstances of the case would have to be examined before this could be decided. If the Tribunal was satisfied that a point had been reached at which justice could not possibly be done due to the excessive delay, the Tribunal would have the power to bring the case to an end as time barred. The Tribunal did not make a decision on whether or not it was in the interests of justice to proceed due to the delay in this case. If this was to be argued at a future date, the Tribunal suggested that the respondent lodge an appropriate minute in pursuit of his argument. The Tribunal accordingly refused the respondent’s motion.

Richard Allan Sandeman

A complaint was made by the Council of the Law Society of Scotland against Richard Allan Sandeman, solicitor, of Messrs Sandeman Solicitors, 256 Main Street, Camelon, Falkirk (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his misleading his client by advising his client by letter that his appeal had not been able to get through the sift, when the true position was that the appeal was out of time and the respondent knew that no sift had taken place. The Tribunal censured the respondent and fined him in the sum of £1,500.

The Tribunal noted previous findings against the respondent but as these were 10 years ago and were not analogous, the Tribunal did not attach much weight to them. The Tribunal was however very concerned by the respondent’s conduct. If solicitors mislead clients, the public cannot have confidence in the legal profession. The Tribunal was puzzled as to why the respondent wrote a letter at this stage because he still had time to sort matters out. The Tribunal considered that the respondent had made an inexplicable error of judgment and allowed himself to be manipulated. The difficulties were caused in this case due to the blurring of the edges between the solicitor and the client and it is important that solicitors avoid any such situation arising. The Tribunal however did take account of the dysfunctional relationship between the respondent and his client in this particular case. It also took account of the fact that the respondent had cooperated with the fiscal and the Tribunal noted the references lodged. The Tribunal also noted the other financial losses which the respondent had suffered as a result of this matter and accordingly considered that a censure plus a fine of £1,500 would be sufficient penalty.

Malcolm Cameron

A complaint was made by the Council of the Law Society of Scotland against Malcolm Cameron, solicitor, 17 Larch Road, Dumbreck, Glasgow (“the respondent”). The Tribunal dismissed the complaint, as amended, as irrelevant.

The Tribunal noted that all that was alleged in the amended complaint was that the respondent had delayed for a period of four months in obtaining copies of the title deeds and forwarding them to his client. The deeds in question had been properly recorded and the clients had a good title to their property at all times. The Tribunal also noted that it was accepted that the respondent was ill during that four month period and had delegated the task to an experienced paralegal. The Tribunal considered that in all the circumstances of this particular case, a delay of four months in sending clients copies of their title deeds could not at its highest amount to a serious reprehensible breach of the standards of conduct expected of a competent and reputable solicitor. The Tribunal therefore decided that in all the circumstances the respondent’s delay, if proved, could not amount to professional misconduct and the complaint was dismissed as irrelevant.