Scottish Solicitors' Discipline Tribunal

Reports relating to Margaret McAfee; Michael Gordon Robson; Louise Ranee Koulaouzos; Mary-Rose McLean; Iain John Smith Vaughan

The Journal, May 2008, page 56

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Margaret McAfee

A complaint was made by the Council of the Law Society of Scotland against Margaret McAfee, solicitor, formerly of Margaret Gray & Company, 297 East Muirhall Street, Coatbridge and now at Flat 1, Fountain Court, 72 Deedes Street, Airdrie (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of her failure without explanation to timeously provide her business file to the Society. The Tribunal censured the respondent.

The respondent did not lodge answers or appear at the Tribunal. The Tribunal accepted the evidence led on behalf of the Society and considered that the respondent’s delay of approximately four and a half months in producing the file, which resulted in the Society being delayed and impeded in investigating the complaint, did amount to professional misconduct. The Tribunal noted that the respondent did eventually produce the file, but found it unfortunate that the respondent had not lodged answers or seen fit to attend the Tribunal. The Tribunal was aware that the respondent was no longer practising and noted that she did send some responses to the Society. In the circumstances, the Tribunal considered that a censure alone would be sufficient penalty.

Michael Gordon Robson

A complaint was made by the Council of the Law Society of Scotland against Michael Gordon Robson, solicitor, The Old School House, 2 Baird Road, Ratho (“the respondent”). The Tribunal made no finding of professional misconduct against the respondent.

The respondent did not appear at the Tribunal hearing and requested an adjournment on medical grounds. The Tribunal was not however satisfied that he was unfit to attend the Tribunal and proceeded in his absence. The fiscal led affidavit evidence before the Tribunal. The Tribunal were not satisfied beyond reasonable doubt on the basis of the affidavit evidence that the respondent’s conduct amounted to professional misconduct. The Tribunal was satisfied beyond reasonable doubt that the respondent had failed to communicate effectively with his client but did not find that this failure was serious and reprehensible enough so as to amount to professional misconduct. The Tribunal however would not wish to associate itself with such conduct and found that the respondent’s conduct was unprofessional.

The case was appealed to the Court of Session by the respondent. The Court of Session upheld the Tribunal’s decision.

Michael Gordon Robson

A complaint was made by the Council of the Law Society of Scotland against Michael Gordon Robson, solicitor, The Old School House, 2 Baird Road, Ratho (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his breach of rule 6(1)(d) of the Solicitors (Scotland) Accounts Rules 1997, his acting dishonestly by charging a fee well in excess of that which he agreed with the co-executor, which fee he took to account from executry funds without intimating a fee note to the executors, and his failure to respond timeously, openly and accurately to the reasonable enquiries made of him by the Society. The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland.

The respondent did not appear at the Tribunal and asked for an adjournment on medical grounds. The Tribunal was not satisfied that the respondent was unfit to attend the Tribunal and proceeded in the respondent’s absence. Affidavit evidence was lodged. The Tribunal was satisfied beyond reasonable doubt that the respondent had agreed a fee in respect of the executry, then gone on to charge a fee in excess of the agreed fee, and had taken these fees to account without issuing a fee note to the executors, and that this amounted to professional misconduct. The Tribunal was also satisfied beyond reasonable doubt that the respondent had failed to respond to the Society. The Tribunal considered that the respondent had deliberately acted in breach of an agreement with his client. The Tribunal was particularly concerned to note two previous findings of professional misconduct against the respondent where he had failed to respond to the Society. The Tribunal noted that the failures to respond to the Society in this case arose in December 2002, which was after the Tribunal findings issued on 8 October 2002 when the Tribunal had taken a very serious view of the respondent’s failure to respond to the Society and failure to comply with previous undertakings given on his behalf to the Tribunal that he would comply in future. Even after the two previous findings against the respondent he still failed to respond to the Society. This taken together with the respondent’s acting in a dishonest fashion and charging fees in excess of that agreed with his client brought the Tribunal to conclude that the respondent was not a fit and proper person to remain on the Roll of Solicitors in Scotland.

The case was appealed to the Court of Session by the respondent. The Court of Session upheld the Tribunal’s decision.

Louise Ranee Koulaouzos

A complaint was made by the Council of the Law Society of Scotland against Louise Ranee Koulaouzos, solicitor, Torridon House, Almondvale Boulevard, Livingston (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of her preparation of a will on behalf of a client which conferred upon her a significant monetary benefit. The Tribunal censured the respondent.

The Tribunal considered whether or not the respondent’s conduct amounted to professional misconduct. The majority view was that it did because the respondent drew up the will in which she was the residuary legatee, which was contrary to the Code of Conduct in place at the time, and the respondent either knew or ought to have known that she should not have prepared the will in these circumstances. The situation did not fall within either of the exceptions which the Tribunal had acknowledged existed in previous cases. It was however clear that at the time the will was made, the respondent was in a long term relationship with the client and they were living together. It was also clear that the will reflected the client’s wishes and the respondent did not exert any undue influence over him. The respondent had made an unfortunate error of judgment in preparing the will. The Tribunal considered that a censure was sufficient penalty.

Mary-Rose McLean

A complaint was made by the Council of the Law Society of Scotland against Mary-Rose McLean, solicitor, Appartement 12, Bloc A2 Le Roqueville, 20 Boulevard de Princesse Charlotte, Monaco  (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of her preparing and sending to her employer two letters, purportedly from her doctor, which gave a completely false account of her medical condition as well as a false explanation for a period of sick leave. The Tribunal censured the respondent.

The respondent used fake letters to mislead her employer, which is totally unacceptable conduct for a solicitor. The Tribunal however found that the circumstances of the case were unusual. It was clear from the report from the respondent’s psychiatrist that she did not realise what she was doing at the time that she prepared the letters. The Tribunal considered that the medical evidence lodged in connection with the respondent’s state of mind, both before and at the time of writing the letters, substantially mitigated the misconduct. The Tribunal was also impressed by the fact that once matters came to light the respondent dealt with them, got treatment from her doctor and co-operated with her firm and the Society. In the whole circumstances, the Tribunal considered that a censure would be sufficient penalty.

Iain John Smith Vaughan

A complaint was made by the Council of the Law Society of Scotland against Iain John Smith Vaughan, solicitor, Messrs Caird Vaughan Solicitors, 1 Bank Street, Dundee (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his acting in a conflict of interest situation by acting for a client when he had previously acted for the co-accused in circumstances where his firm had sought to incriminate the client when acting for the co-accused, the respondent having acted throughout the prosecution of the co-accused, and by accepting instructions to act for a client when he had access to confidential information in respect of the case against the co-accused which could be relevant to the defence of the client. The Tribunal censured the respondent and fined him in the sum of £2,500.

The Tribunal considered that the respondent owed a continuing professional duty to respect the co-accused’s confidence, and was not free to disclose to his client the confidential instructions that he had been given by the co-accused and accordingly could not properly advise his client in connection whether or not the co-accused should be incriminated. The respondent was in breach of the Society’s Code of Conduct for criminal work. The Tribunal took account of the fact that the conflict in this case was complex and successive. The Tribunal considered that the respondent had made an unfortunate error of judgment. The Tribunal was impressed by the fact that the respondent had taken steps as set out in the letter from his firm to put in place measures to ensure that the situation would not arise again. The Tribunal however considered that the respondent, as an experienced solicitor, should have known better. The Tribunal accordingly considered that a censure and fine of £2,500 was the appropriate penalty.

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