THE SCOTTISH SOLICITORS DISCIPLINE TRIBUNAL Constituted under the Solicitors (Scotland) Act 1980 as amended

Transcription

1 THE SCOTTISH SOLICITORS DISCIPLINE TRIBUNAL Constituted under the Solicitors (Scotland) Act 1980 as amended ANNUAL REPORT 2009/2010 for the period 1 November 2009 to 31 October

2 THE SCOTTISH SOLICITORS DISCIPLINE TRIBUNAL Constituted under the Solicitors (Scotland) Act 1980 as amended for the year to 31 October 2010 TRIBUNAL Alistair M Cockburn Chairman Solicitor Members Colin Bell Dorothy M Boyd Dr David C Coull (Vice Chairman)(Member until October 2010) Gordon L Cunningham (Member until February 2010) Joseph Hughes Kirsteen Keyden (Vice Chairman) Alan McDonald Douglas McKinnon Graeme McKinstry Malcolm McPherson (Vice Chairman) Kenneth Paterson Nicholas Whyte Lay Members John Anderson, MBE Sophia B Ayre Peter Burdon Elizabeth Cameron Professor Monojit Chatterji Michael Hastie Mark Irvine Andrew Jones Irene Kitson Rosemarie McIlwhan Elaine Noad, OBE Catriona Whitfield CLERK Judith V Lea DEPUTE CLERK Audrey Watson ADDRESS Unit 3.5, The Granary Business Centre, Coal Road, Cupar, Fife KY15 5YQ Tel: Fax: ssdt@judithvlea.plus.com 2

3 CHAIRMAN S INTRODUCTION Details of the Tribunal s workload over the past 12 months are set out in this report. The Tribunal met on fewer occasions this year than in previous years, only meeting 25 times during the year. There was a corresponding decrease in the number of decisions issued by the Tribunal. The Tribunal concluded a longrunning case which had been ongoing over a number of years. The volume of business coming to the Tribunal has significantly reduced in the last 18 months. There seems to be no particular explanation for this. The Tribunal however has been surprised by the fact that it has so far not dealt with any cases governed by the Legal Profession and Legal Aid (Scotland) Act 2007 (the 2007 Act) which applies to all conduct which occurred after 1 October The Tribunal would have expected to have been dealing with these cases by now. The Tribunal did receive two Appeals under section 42ZA of the 2007 Act from lay complainers in respect of the compensation awarded, or lack of compensation awarded, by the Law Society in making findings of unsatisfactory professional conduct. However both these Appeals were withdrawn once the lay complainers realised their potential liability for expenses. The Tribunal findings continue to be put on the website which is fully searchable and can be accessed at The Tribunal hearings are held in public and the forthcoming Tribunal hearings are detailed on the diary part of the website. This report highlights the main points from the decisions during the previous year. It is hoped that members of the profession will take the time to read this report and be reminded of the importance of maintaining the reputation of the legal profession. David Coull, Vice Chairman, stepped down at the end of the year due to retirement from practice. I would like to thank him for the significant contribution he made to the running of the Tribunal during his term of office. Gordon Cunningham, a long-standing and invaluable legal member, also stepped down during the year. They will both be missed. I would like to thank my Vice Chairmen, the Tribunal members, the Tribunal Clerk, the Depute Clerk and the Tribunal secretaries for their help and support during the year. Alistair M Cockburn Chairman 3

4 CONSTITUTION The Scottish Solicitors Discipline Tribunal is an independent Tribunal constituted under the provisions of sections of and Schedule 4 to the Solicitors (Scotland) Act 1980 (the 1980 Act) as amended in particular by the Legal Profession and Legal Aid (Scotland) Act 2007 (the 2007 Act). The Tribunal sits with two solicitor members and two lay members. The Tribunal is independent of the Law Society of Scotland with none of the solicitor members being on the Council of the Law Society. The lay members are drawn from a wide variety of backgrounds. All Tribunal members are appointed by the Lord President. The Tribunal presently has 11 solicitor members and 12 lay members. The Tribunal operates under the Scottish Solicitors Discipline Tribunal Procedure Rules 2005 and the Scottish Solicitors Discipline Tribunal Procedure Rules GENERAL Tribunal hearings continue to be held in public, normally at George House, 126 George Street, Edinburgh or sometimes at the Scotsman Hotel in Edinburgh. The diary part of the Tribunal website details the substantive business scheduled to be heard but not procedural business. In certain cases, business is not put into the diary if there is a motion for the hearing to be held in private. The Tribunal website at includes details of all Tribunal members, Tribunal Rules, Tribunal Annual Reports, general information on the workings of the Tribunal and all the Tribunal findings issued since 1995 where publicity has been given. Findings subject to deferred publicity or which are under appeal to the Court of Session are not put on the website until any criminal proceedings are concluded or until the appeal has been concluded. Tribunal findings usually go on the website approximately three months after the date of the Tribunal hearing. The Tribunal is still dealing with cases under the 2005 Rules. The only business that has come to the Tribunal under the 2007 Act, governed by the 2008 Rules, have been two Appeals under section 42ZA by lay complainers as referred to in the Chairman s introduction. The Tribunal is unaware of the reason why it has not received any professional misconduct cases under the 2007 Act as it would have expected that some conduct issues arising after 1 October 2008 would now have reached the Tribunal. As a result of not receiving any cases under the 2007 Act the business dealt with by the Tribunal during the year has significantly reduced. The Tribunal however is still dealing with cases under the old regime including section 42A Appeals and section 53C cases. TRIBUNAL BUSINESS The Tribunal received fewer than half the number of Complaints this year than it did in the previous year. This resulted in the Tribunal meeting on significantly fewer occasions than in The Tribunal deals with the following types of business: 1. Complaints with regard to professional misconduct. 4

5 2. Complaints that a solicitor/firm of solicitors has provided an inadequate professional service. 3. Appeals by a solicitor/firm of solicitors against a finding by the Law Society of an inadequate professional service (section 42A Appeals). 4. Applications for restoration to the Roll of Solicitors. 5. Applications for enforcement of inadequate professional service Orders made by the Council of the Law Society (section 53C Complaints). 6. Appeals by solicitors or lay complainers in respect of findings of unsatisfactory professional conduct made by the Law Society. (section 42ZA Appeals). Although business under 2, 3 or 5 will no longer be dealt with by the Tribunal under the 2007 Act there are still quite a number of cases under 3 and 5 coming to the Tribunal. The Tribunal understands that the Law Society has made a number of findings of unsatisfactory professional conduct and under the 2007 Act the Tribunal has jurisdiction to deal with appeals by lay complainers or solicitors against these findings. However to date the Tribunal has not received any Appeals which have proceeded. As the Tribunal has not yet dealt with any professional misconduct under the 2007 Act it has not had any experience of cases where it has the power to award compensation. PROCEDURAL/APPEALS TO THE COURT OF SESSION There were once again a lot of cases where Respondents entered into joint minutes admitting the facts and averments in the Complaint. This saves time and money, avoids the need for complainers to give evidence and is taken into account by the Tribunal when considering penalty. There was one case where a Respondent appealed the Tribunal s decision in respect of the making of Orders under section 53C against him in respect of inadequate professional service determinations made by the Law Society. The solicitor appealed on the basis that the Tribunal had proceeded in his absence. The case was however dismissed by the Court of Session unopposed. Another Respondent appealed to the Court of Session in respect of the Tribunal s Interlocutor upholding his Appeal under section 42A but making no award of expenses. The Appellant in this case felt that expenses should have been awarded against the Law Society as he had been successful in his Appeal. The Tribunal however considered that if the Appellant had made a full and detailed response to the Law Society initially things might have been different and also considered that the Appellant had not been completely without fault in the case and accordingly did not consider it appropriate to award expenses in the Appellant s favour. The Appellant s Appeal was refused by the Court of Session. The same Appellant also appealed the Tribunal s decision in respect of another Appeal under section 42A where the Tribunal had refused his Appeal. This Appeal is ongoing at the Court of Session at present.another Respondent appealed the Tribunal s finding of professional misconduct in respect of his acting in a conflict of interest situation in a conveyancing transaction and this matter is presently under consideration at the Court of Session. The Appeal by the two Respondents referred to in last year s Annual Report where challenge was made to matters which were accepted by them in a joint minute before the Tribunal was dismissed unopposed by the Court of Session. 5

6 The Tribunal dealt with one application for removal of a restriction on a practising certificate. The Tribunal had to refuse the application as premature as the Applicant had not worked as a qualified assistant to an employer as may be approved by the Council of the Law Society for an aggregate period of at least five years as stipulated by the previous Tribunal Interlocutor. COMPLAINTS UNDER SECTION 53C OF THE SOLICITORS (SCOTLAND) ACT 1980 The Tribunal dealt with six Complaints under section 53C where the Law Society determined that an inadequate professional service had been provided by the solicitor concerned and had directed awards of compensation or refund of fees. These solicitors then failed to comply with the determinations and directions made by the Law Society and did not lodge an appeal against them. The Tribunal was accordingly required to issue Orders under section 53C(2) of the 1980 Act, resulting in the determinations and directions being enforceable in like manner as a warrant from any Sheriffdom in Scotland. In three of these cases the section 53C Complaint was put forward to the Tribunal along with a Complaint of professional misconduct against the same Respondent. APPEALS UNDER SECTION 42A OF THE SOLICITORS (SCOTLAND) ACT 1980 The Tribunal dealt with three Appeals which were argued before it during the year. In one of these, the Tribunal found the Appeal so irrelevant and lacking in specification as to be manifestly ill-founded and dismissed the Appeal. The Tribunal found that the Appeal as lodged by the Appellant was extremely skeletal in nature and did not give the Law Society notice of the case that it required to answer. The Appellant did not expand on his grounds of appeal despite being called upon to do so and failed to attend the Tribunal hearing to pursue his Appeal. In another Appeal the Tribunal found that the decision appealed against had been wholly supplanted by a second decision made by the Law Society and accordingly all rights flowing from the first decision fell and there was no longer any valid Appeal before the Tribunal and accordingly nothing for the Tribunal to rule on. In the third Appeal, the Tribunal found that the issuing of draft documentation which contained a number of errors did not in itself amount to inadequate professional service, considered that as there had been so much confusion as to whether the lay complainer s requests for information regarding fees were repeated requests for the same information or a number of requests for different information, this also could not amount to inadequate professional service and accordingly upheld the Appeal in respect of these two matters. The Tribunal however considered that the whole purpose of a fee estimate is to enable clients to have an understanding of what work is required and to provide clients with a figure of the likely costs of undertaking that work in order that the clients have information on which to base their decision as to whether or not they wish to proceed. The Tribunal found that in this case as the initial estimate was substantially increased after a short period, a solicitor should have given reasons for the increase. The Tribunal considered that in these circumstances a failure to provide more detailed information amounted to inadequate professional service and refused the Appeal in respect of this matter. 6

7 There were four cases where Appeals under section 42A were allowed on joint motion of the Law Society and the Appellants. There was one Appeal under section 42A which was dismissed on joint motion of the Appellants and the Law Society. APPEALS UNDER SECTION 42ZA OF THE SOLICITORS (SCOTLAND) ACT 1980 The Tribunal received two Appeals from lay complainers under section 42ZA. In both cases the Appellants withdrew their Appeals due to concerns with regard to the potential liability for expenses and concern with regard to entering into the formal Tribunal process. The Tribunal expressed concern when the 2007 Act was being drafted in connection with the giving of this right of appeal to lay complainers because the Tribunal was aware that lay complainers might be somewhat daunted at the prospect of appearing before the Tribunal with the possibility of an award of expenses against them. The Scottish Government is aware of the difficulties being caused by this. WITHDRAWAL OF COMPLAINTS/NO FINDING OF PROFESSIONAL MISCONDUCT There was one case where a Complaint was withdrawn. The Tribunal also made no finding of professional misconduct in two cases. In one of these cases the Tribunal accepted that the Respondent had advised the clients verbally to take advice before signing the lease of a barge as opposed to heritable property and accordingly did not consider that the Respondent s failure to advise the clients in writing was sufficiently serious to amount to professional misconduct. In the other case the Tribunal considered that in the particular circumstances of the case, the Respondent s delay in recording two dispositions due to an oversight was not sufficient to amount to professional misconduct. DISHONESTY/BORROWING WITHOUT CONSENT There were two cases during the year involving elements of dishonesty. In one case the Respondent was found guilty in respect of his breach of rule 4 of the Solicitors (Scotland) Accounts etc Fund Rules 2001 and his stealing and embezzling funds belonging to his clients over a lengthy period of time on a repeated basis in order to fund his personal lifestyle and professional practice. In this case the Tribunal had no hesitation in striking the Respondent s name from the Roll of Solicitors in Scotland. This matter is presently subject to deferred publicity due to possible criminal proceedings against the Respondent. In the other case the Tribunal found the Respondent guilty of professional misconduct in respect of his permitting his own personal interest to influence his acting on behalf of a client, his failure to act on his client s irrevocable instructions and in direct conflict with those irrevocable instructions by his borrowing 60,000 from his client rather than paying the sum to the brother of the client in terms of the mandate and his borrowing 60,000 from his client in breach of rule 21 of the Solicitors (Scotland) Accounts etc Fund Rules The Tribunal only refrained from striking the Respondent s name from the Roll because the clients did not themselves complain and had suffered no loss and there were significant extenuating circumstances in regard to the Respondent s age and health. The Respondent had also fully co-operated and entered into a joint minute. In 7

8 the circumstances the Tribunal Censured the Respondent and imposed a Restriction on his practising certificate for a period of five years. The Tribunal also made Orders under section 53C(2) of the 1980 Act. FAILURE TO COMPLY WITH THE ACCOUNTS RULES/CONVEYANCING/FAILURE TO COMPLY WITH MONEY LAUNDERING REGULATIONS There were three cases during the year mainly concerned with failure to comply with the Accounts Rules. One case concerned two Respondents. The First Respondent was found guilty of professional misconduct in cumulo in respect of several breaches of the Solicitors (Scotland) Accounts etc Fund Rules 2001, namely rule 6 regarding the operation of client accounts, rule 8 regarding keeping properly written up books and accounts, rule 10 regarding the reconciliation of clients funds, rule 11 regarding the payment of interest on uninvested balances and rule 22 which prohibits the firm acting for the lender to one of the solicitors in the firm. The Second Respondent was found guilty of professional misconduct in cumulo in respect of his several breaches of rule 24 of the said Rules in relation to his failure to comply with the requirements of the Money Laundering Regulations. Both Respondents were Censured and Fined 7,500 each. The Tribunal was concerned with regard to the First Respondent s failure to heed warnings from his professional body and his inability to address the system failures when they were pointed out to him. In connection with the Second Respondent, the Tribunal considered the failure to comply with the Money Laundering Regulations very serious. The Second Respondent had completely ignored a number of regulations which had been in place for some considerable time and which were designed to prevent money laundering. In another case, the Respondent was found guilty of professional misconduct in respect of his operating the client account in deficit, his failure to maintain books and records as required by rule 8 of the Solicitors (Scotland) Accounts etc Fund Rules 2001, his failure to properly record a bridging loan, his breach of the Money Laundering Regulations, his failure timeously to attend to the stamping and recording of deeds, his failure to ensure that cheques were properly designated as required by rule 6(2), his failure to follow lender s instructions in relation to reporting and investment of funds, his failure to comply with the requirements of rule 21 of the Accounts Rules in relation to borrowing from clients, his failure to comply with the requirements of the Solicitors (Scotland) (Client Communication) Practice Rules 2005, his failure to obtain written authority for an inter-account transfer, his failure to comply with the requirements of the Solicitors (Scotland) (Incidental Financial Business) Practice Rules 2004, his failure to deal timeously with professional correspondence from the Law Society, his failure to obtemper statutory notices, his failure to timeously implement letters of obligation, his failure to timeously settle a solicitor s account, his failure to settle accounts due to the Registers of Scotland, his failure timeously to administer an estate and follow instructions to do what he had undertaken to the executrix to do and his failure to honour an undertaking given to a client. The Tribunal Suspended the Respondent from practice for a period of five years. The Tribunal also made various Orders under section 53C of the 1980 Act. This Respondent had eight different Complaints which were conjoined and dealt with in cumulo. The Respondent not only breached the Accounts Rules but failed to record deeds timeously, failed in a number of professional obligations and had numerous failures to respond to the Law Society. The Tribunal considered it extremely reckless for the Respondent to continue in 8

9 practice with his considerable operational difficulties. The third case was the extremely long-running case in which the Tribunal heard evidence from numerous witnesses over a period of two years. The case concerned two Respondents who had both operated as sole practitioners and then gone into practice together. The Second Respondent made a plea of oppression claiming he had been treated unfairly by the Law Society. This was repelled by the Tribunal. The Tribunal found the First Respondent guilty of professional misconduct either singly or in cumulo in respect of his repeated failure to respond to the reasonable enquiries of the Law Society, his repeated failure to comply with notices served on him by the Law Society, his failure to implement mandates and his failure to respond to fellow solicitors, his failure to arrange effective registration of the title of a client and the security in relation to that client s loan, his failure to provide a signed assignation of lease and deliver an extract, his breach of rules 4, 8, 9, 10, 11 and 24 of the Solicitors (Scotland) Accounts etc Fund Rules 2001, his repeated delay or failure to stamp, record or register timeously dispositions, standard securities and discharges and his failure to comply with the Solicitors (Scotland) Professional Indemnity Insurance Rules 1995 by operating without professional indemnity insurance. The Tribunal found the Second Respondent guilty of professional misconduct either singly or in cumulo in respect of his failure to reply to the reasonable requests of the Law Society for information, his breach of rules 4, 6, 8, 9, 10, 11 and 24 of the Solicitors (Scotland) Accounts etc Fund Rules 2001, his repeated delay or failure altogether to stamp, record or register dispositions, standard securities and discharges, and his failure to comply with the Solicitors (Scotland) Professional Indemnity Insurance Rules 1995 by operating without professional indemnity insurance. The Tribunal ordered that the names of the First and Second Respondents be Struck Off the Roll of Solicitors in Scotland. This was an extremely long and complicated Complaint and some of the averments were found not to be proven by the evidence. On the basis of what was proved, however, the Tribunal found that the First Respondent s office was in a state of disarray and confusion and that a competent solicitor would not have got himself in such a mess and would not have continued in practice with matters in such a state of chaos. The Tribunal was extremely concerned by the fact that there were so many matters which were brought to light by repeated inspections of the Law Society over a long period of time and the First Respondent did not seem to learn from his past mistakes. It appeared to the Tribunal that the First Respondent did not have the knowledge and competence to practise as a solicitor and the Tribunal considered that it would be a danger to the public if he were allowed to continue as a solicitor. In connection with the Second Respondent, again the Tribunal was concerned that there were serious and repeated failures by the Second Respondent who did not seem to learn from his mistakes. The Second Respondent appeared to believe it was acceptable to run his business without maintaining the books and accounts for his firm in such a fashion that the true financial position of the firm was shown and this caused the Tribunal extreme concern. The transactions which caused the Law Society real concern at the inspection of the partnership between the First and Second Respondents were the Second Respondent s transactions. The Tribunal did not consider that the Second Respondent was a fit and proper person to be a solicitor. 9

10 FAILURE TO IMPLEMENT MANDATES/FAILURE TO RESPOND TO THE LAW SOCIETY A Respondent was found guilty of professional misconduct in respect of his delay and failure in implementing a mandate and his failure to provide his business files to the Law Society and failure to provide any explanation as to why the papers had not been produced timeously or otherwise. The Tribunal made a finding of misconduct to demonstrate the Tribunal s continued attempts to require individual members of the profession to respond to their professional body when requests are made of them. Failure to implement a mandate is a breach of the solicitor s obligations and hampers the new solicitor in implementing the client s instructions which is prejudicial to the reputation of the legal profession. The Tribunal however took into account the fact that the Respondent s firm had already made a payment of 1,000 in respect of an inadequate professional service award. The Tribunal did not consider it necessary to impose a further penalty and Censured the Respondent. In another case the Respondent was found guilty of professional misconduct in respect of his failure to respond promptly to the reasonable enquiries made of him by the Law Society in respect of the affairs of a client despite repeated and numerous reminders sent to him by the Law Society. The Tribunal considered that the Respondent s conduct fell at the lower end of the scale of professional misconduct as his failure to respond related to only one client and the Tribunal considered it unfortunate that the Respondent ended up before the Tribunal. The Tribunal Censured the Respondent. CONFLICT OF INTEREST/CONVEYANCING There were four cases dealt with during the year concerning conflict of interest. In one case the Tribunal found the Respondent guilty of professional misconduct in respect of his acting where there was a conflict of interest in that he acted for a Settlement as a lender and the client as a borrower in preparation of a standard security, ranking agreement and other documents forming the terms and conditions of the sums being secured and knowing there was joint venture agreement between the parties, his accepting instructions from his client to draft, have executed and registered two standard securities when he knew or have ought to have known that in doing so the client was in breach of an agreement entered into with the Settlement, the Respondent had been instructed to put said agreement into place and in terms of the agreement he had not yet registered a standard security to protect the interests of the settlement, his preparation and execution of statutory declarations by the client and another client undertaking not to grant further securities over the property concerned when he knew or ought to have known that those clients had already granted two further securities in breach of the agreement with the Settlement, and while not having registered the standard security by the client and the other client in favour of the Settlement his acting where there was a conflict of interest by preparing, having executed and registered two standard securities by the client and other client in favour of two other lenders in the knowledge that these securities were in breach of the agreement with and loan by the Settlement, the loan by the Settlement not having yet been secured by the standard security over the property in favour of the Settlement. The Tribunal took into account that this matter involved a failure in relation to a complex single transaction but noted that it was a continuing failure subsisting for a considerable period of time. The Tribunal Censured the Respondent. Orders were also made under section 53C. Another Respondent was found guilty of professional misconduct in 10

11 respect of his breach of the common law precedent principle relating to conflict of interest and his breach of rule 3 of the Solicitors (Scotland) Practice Rules The Tribunal was of the view that the Respondent s failure was commercially motivated and considered that a Censure and Fine of 2,000 was appropriate. In another case the Respondent was found guilty of professional misconduct in respect of his conduct amounting to a failure on his part to adequately supervise his assistant, then active in the course of her employment. The Tribunal considered that the Respondent s failure to supervise his assistant and point out an obvious conflict of interest amounted to professional misconduct. The Tribunal however considered that this was an isolated failure which had not persisted for any length of time and Censured the Respondent. In the fourth case the Tribunal found the Respondent guilty of professional misconduct in respect of his acting where there was a conflict of interest in that he acted for a client in a conveyancing transaction by acting for the client s former cohabitee and co-proprietor in circumstances where the former cohabitee and coproprietor was seeking a decree for an interdict against the client and was seeking to obtain and recover judicial expenses from the client. The Tribunal Censured the Respondent. This matter is presently under appeal to the Court of Session. The Tribunal notes that there appear to be an increase in the number of conflict of interest cases coming before it. This may have something to do with the economic climate. PUBLICITY In terms of paragraph 14 of and Schedule 4 to the 1980 Act as amended, every decision of the Tribunal is published in full, subject to the terms of paragraph 14A. Once the written Tribunal findings are intimated to parties, three weeks are allowed for an appeal and at the end of this three-week period, if there is no appeal, publicity is given to the decision. Occasionally publicity is deferred, for example if a criminal prosecution is pending. EXPENSES The Tribunal has the power to award expenses in terms of Schedule 4 to the 1980 Act. Expenses are usually awarded to the successful party and include the expenses of the Tribunal. Last-minute adjournments can result in an unnecessary increase in expense. 11

12 APPENDIX STATISTICS FOR THE YEAR TO 31 OCTOBER 2010 Year to 31/10/10 (Year to 31/10/09) Number of days on which the Tribunal met to hear Complaints 25 (41) Number of Complaints received 15 (36) Complaints containing a report under section 53(1)(b) of the Solicitors (Scotland) Act (1) Business outstanding or partly heard at end of year 12 (25) Appeals to Court of Session 2 (2) Application for reduction 0 (1) Complaints received direct from members of public 0 (0) Miscellaneous applications 0 (1) Appeals under section 42A of the Solicitors (Scotland) Act (9) Appeals to Court of Session concluded during the Year Appeals remitted 0 (0) Appeals abandoned 2 (0) Appeals heard 1 (0) Successful appeals 0 (0) Successful Application for reduction 0 (1) Appeals refused 1 Number of Cases heard and Decisions issued 33 (50) Findings of professional misconduct 13 Findings under section 53(1)(b) 0 Section 42A appeal decisions 3 Section 53C findings made 6 Complaints withdrawn, dismissed or no finding made 3 Section 42A Appeals withdrawn or dismissed 1 Section 42A Appeals allowed of consent 4 Section 42ZA Appeals withdrawn/dismissed 2 Procedural decisions 0 Decisions on application for restoration to the Roll or re restriction on practising certificate 1 12

13 Sentences Imposed in Respect of Findings of Professional Misconduct and section 53(1)(b) Censure + Restriction (1) 8% Censure + Restriction + Fine (0) 0% Struck Off (3) 23% Censure (5) 38% Suspended (1) 8% Censure + Fine (3) 23% Principal Grounds on which Misconduct Established M (4) 11% A (4) 11% K (0) 0% L (2) 5% B (4) 11% J (5) 14% C (1) 3% D (1) 3% E (4) 11% I (7) 18% H (1) 3% G (2) 5% F (2) 5% A. Failure to reply to Law Society and/or clients. B. Conflict of interest. C. Failure to deal with trust/executry in a proper manner. D. Failure to deal with court proceedings and prosecuting claims in a proper manner. E. Failure to complete conveyancing procedures in a proper manner. F. Excessive delay. G. Failure to implement mandates. H. Misleading the Law Society and/or other parties. I. Failure to comply with the Accounts Rules. J. Failure to comply with other professional obligations. K. Other conduct unbecoming a solicitor. L. Dishonesty. M. Money laundering. 13

14 Distribution of Solicitors Convicted or Found Guilty of Professional Misconduct and section 53(1)(b) Sole Practitioners Partnerships or Employed Location of Solicitors Convicted or Found Guilty of Professional Misconduct and section 53(1)(b) Glasgow Other Strathclyde Edinburgh Other Lothian & Borders Grampian, Highland & Islands Tayside, Central & Fife 14

15 Alistair M Cockburn (Chairman) BIOGRAPHICAL DETAILS Solicitor Members Member of the Tribunal since Vice Chairman since 2003, Chairman from June Admitted in Partner in Glasgow firm since 1974 which through mergers now has 15 partners. Professional background is as a litigation solicitor. Past convener of the Sheriff Court House Committee of the Royal Faculty of Procurators in Glasgow. Accredited by the Law Society of Scotland as a specialist in employment law since Past member of the Glasgow and North Argyll Legal Aid Committee. Acts as Clerk in various arbitration procedures. Malcolm McPherson (Vice Chairman) Member of the Tribunal since Vice Chairman since June Admitted in Senior partner of a 140-partner firm specialising in company and commercial law. Holder of a number of non-executive directorships. Dr David C Coull (Vice Chairman to October 2010) Member of the Tribunal since October Vice Chairman from June 2008 to October Admitted in Formerly a sole practitioner practising principally in the fields of residential property, wills and executries. Former Law Society Complaints Reporter and former member of a Law Society Client Relations Committee. Kirsteen Keyden (Vice Chairman) Member of the Tribunal since October Admitted Tribunal Judge (Criminal Injuries Compensation). Specialises in civil litigation, in particular defender-based reparation and insurance law. Accredited as a specialist in Personal Injury Law in A Writer to the Signet and lectures and tutors in Civil Litigation and Time Management for the WS Society in the Law Society's Professional Competency Course. Awarded a Certificate in Forensic Medicine and Science from the University of Edinburgh in Colin Bell Member of the Tribunal since Admitted Sole practitioner principally in the fields of property law, wills, trusts, executries and tax law. Member of the Institute of Chartered Accountants of Scotland. Treasurer of the Faculty of Procurators of Dumfriesshire. Dorothy M Boyd Member of the Tribunal since Partner in Shepherd & Wedderburn specialising in commercial property. Member of the Society of Writers to the Signet. 15

16 Gordon L Cunningham (Member until February 2010) Member of the Tribunal from 2000 until Admitted in Partner in a threepartner firm with offices in Paisley and Glasgow for 23 years. Moved to HBJ Gateley Wareing in April 2008 to concentrate on tax, trust and succession planning matters. Joseph Hughes Member of the Tribunal since September Admitted as solicitor in Set up own legal practice in 1986 and now managing partner of J C Hughes, Glasgow. Previous Reporter to Law Society ( ). Extended Rights of Audience (Criminal-2004). Obtained MSc (Criminal Justice) in Currently legal member of the Mental Health Tribunal (2004), the Additional Support Needs Tribunals (2005), the Scottish Charity Appeals Panel (2006), the Scottish Legal Aid Board (2006), the Doctors and Dentists Disciplinary Appeals Panel (2007), the Pensions Appeal Tribunals (2008). Appointed Legal Advisor to General Dental Council in September Appointed board member of Scottish Children s Reporter Administration in September Previous Vice Chair of two major Scottish Charities-Turning Point Scotland ( ) and Action for Children ( ). Alan McDonald Member of the Tribunal since October Partner in South Forrest, Solicitors, Inverness, specialising in company and commercial law. Douglas McKinnon Member of the Tribunal since October Consultant in Ayrshire firm specialising in court-related matters, primarily criminal. Former member of the Council of the Law Society of Scotland and former Convener of the Client Relations Committee. Past Dean of the Faculty of Solicitors of Kilmarnock. Graeme McKinstry Member of the Tribunal since September Senior and managing partner of The McKinstry Company, Solicitors, Ayr. Graduated Bachelor of Laws from Dundee University in 1975 and MBA in Legal Practice from Nottingham Trent University in His main areas of work are now in the fields of commercial business, property, licensing and all private client related work. He acts for small businesses in acquisitions, disposals, mergers and general business law. He is a former member of the Local Health Trust in Ayrshire and the Scottish Legal Aid Board and has served on Law Society Committees and is a past Dean of Ayr Faculty of Solicitors. Kenneth Paterson Member of the Tribunal since Admitted as a solicitor in Previously a Reporter to the Client Relations Committee of the Law Society for three years. Has been with Rankin & Aitken since 1977, being appointed a partner in Currently 16

17 the senior partner of the firm dealing largely with private client work. Honorary Sheriff at Stranraer since Past Dean of Wigtown District Faculty of Solicitors. Nicholas Whyte Member of the Tribunal since September Partner in MacHardy Alexander & Whyte, Forfar, mainly dealing with conveyancing and executry work. Previously held a part-time appointment in the Appeals Service. Lay Members John Anderson, MBE Member of the Tribunal since January Head of Professional Practice at the General Teaching Council for Scotland, former teacher and trade union official, graduated in law from Edinburgh University in 1991, Children s Panel member ( , Chairman ), and also an Independent Assessor to the Office of the Commissioner for Public Appointments in Scotland ( ). Member of the Education Honours Committee and member of the Faculty of Advocates Complaints Committee and Disciplinary Tribunal. Sophia B Ayre Member of the Tribunal since January She is a lay member of the Employment Appeal Tribunal and a consultant in Human Resources and was previously Human Resources Specialist with the Bank of Scotland and Polaroid UK Ltd. Peter Burdon Member of the Tribunal since Retired actuary. Currently a lay member of the Financial Services and Markets Tribunal, Pensions Regulator Tribunal, the Claims Management Services Tribunal and an Independent Public Appointments Assessor for DfE. Elizabeth Cameron Member of the Tribunal since Membership of the Council on Tribunals from 2002 to October Membership of the Administrative Justice and Tribunals Council from November 2007 to September Professor Monojit Chatterji Member of the Tribunal since January BA (Bombay), MA, PhD (Cambridge). Bonar Professor of Applied Economics at University of Dundee and Fellow, Sidney Sussex College, University of Cambridge. Visiting Professor in USA, Australia, Mexico, India. Currently Chair, National Joint Council of UK Fire and Emergency Services and member of Welsh Remuneration Board. Formerly, member of School Teachers Review Body (England and Wales) ( ). Member of Advisory 17

18 Board of BBC World Service ( ). Vice Chair National Appeals Panel of Scotland ( ). Michael Hastie Member of the Tribunal since January Chartered quantity surveyor in own private practice. Served as JP in Aberdeen since 1976 and graduated to the Bench of the District Court in Former Governor of Robert Gordon University ( ). Member of Aberdeen City Council ( ). Depute Lord Lieutenant of the City of Aberdeen. Various directorships in property companies. Mark Irvine Member of the Tribunal since January Independent consultant who works with a wide range of clients in the public, private and not for profit sectors both in the UK and in Europe. Previously a senior official with the public services union, UNISON (formerly NUPE), acting as its chief negotiator and Head of Local Government in Scotland during the 1990s. Also a member of the Scottish Local Authorities Remuneration Committee (SLARC) a body established by Scottish Ministers to review remuneration and pay arrangements for elected local councillors. Andrew Jones Member of the Tribunal since November Member of the Parole Board, Chair of Children s Hearings, member of the Ofcom Advisory Committee and formerly member of the Dunbartonshire Economic Forum. He undertakes media consultancy and business mentoring through the LINC network. Irene Kitson Member of the Tribunal since November Fellow of the Chartered Institute of Personnel and Development. Previously lectured in Management and Labour Studies, became full-time Official for Teachers Union, EIS and Councillor in City of Edinburgh. Currently JP, served as Chair of Justice of Peace Committee in Edinburgh and is now a member of Executive Scottish Justices Association. Currently a consultant in Employment and Human Resource Management, member of the Employment Tribunal and member of the Parole Board Scotland. Rosemarie McIlwhan Member of the Tribunal since November A human rights and equality consultant. An associate lecturer in law with the Open University and an Associate with Edinburgh University Centre for Education for Racial Equality in Scotland. She has written and lectured on a range of human rights subjects including the interplay between equality and human rights, asylum, children s rights and mental health. Also discrimination law editor of the Scottish Human Rights Law Group. Previously the Programme Director for the Commission for Equality and Human Rights and prior to that Director of the Scottish Human Rights Centre. Elaine Noad, OBE 18

19 Member of the Tribunal since November She has spent most of her career in senior positions in local government most recently as the Director of Social Work, Housing and Health with South Ayrshire Council. Between 2004 and 2006 she was on secondment to the Scottish Government. Member of the Parole Board for Scotland and an independent assessor with the Commissioner of Public Appointments for Scotland. Catriona Whitfield Member of the Tribunal since November She has a degree in law and qualified as a chartered accountant in She has a professional background in audit, investigations, dispute resolution and commercial litigation. Currently a Director of a charity in the heritage and arts sector. Member of the Scottish Charity Appeal Panel. 19