McMAHON v COUNCIL of The LAW SOCIETY of SCOTLAND
| Jurisdiction | Scotland |
| Judgment Date | 12 February 2002 |
| Date | 12 February 2002 |
| Docket Number | No 39 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
Solicitors—Appeal from Disciplinary Tribunal on sentence—Whether appropriate for court to interfere with decision of Tribunal
Solicitors—Professional duties—Duty to conduct their clients' affairs to utmost ability and with complete honesty and integrity
The petitioners were solicitors. The Scottish Solicitors' Discipline Tribunal made a finding of professional misconduct against them in respect of certain matters and suspended the first and second petitioners for five years and ordered that the third petitioner be struck off the Roll of Solicitors in Scotland. The petitioners did not challenge the findings of misconduct, but contended that the penalty was excessive.
Held that (1) in the past in appeals against sentence the court was reluctant to interfere with the sentence of the Tribunal on the basis that the Tribunal were best placed to assess the seriousness of the offence and determine the appropriate penalty; the court must now apply a less rigorous test and look at the Tribunal's decision in the light of the whole circumstances of the case, having due respect for the expertise of the Tribunal and giving to their decision such weight as the court thought appropriate; but in following this approach it was good sense to keep in view the obvious reasons for according respect to the views of tribunals (p 479C–H); (2) practitioners should bear in mind that membership of the legal profession is a privilege and solicitors have a duty to conduct their clients' affairs to their utmost ability and with complete honesty and integrity, and when solicitors fail in these duties the public must be assured that they will be suitably dealt with by the profession's disciplinary system (p 479I–480B); (3) the Tribunal's decision should both vindicate the reputation of the profession and protect the public against risk of repetition (p 480B–C) (4) where dishonesty with client's money is concerned, there can be few instances, if any, where leniency can be shown (p 480C–D); (5) although there was no finding of dishonesty in respect of the first and second petitioners, their misconduct was serious and there was no justification for reducing the sentence of the Tribunal; (p 485E); (6) the period of five years should run from the date of the Tribunal's decision, not the date of the court's interlocutor in these proceedings (p 485I)(7) the sentence of the Tribunal in respect of the third petitioner was correct and appropriate; and appeals allowed in respect of the first and second petitioners to the limited extent of the matter of the date from which the period of suspension should run and appeal refused in respect of the third petitioner.
Ghosh v General Medical CouncilWLR [2001] 1 WLR 1915 applied.
Gerald John Robert McMahon and others brought a petition in the Court of Session in relation to a decision of the Scottish Solicitors' Discipline Tribunal.
Cases referred to:
Bolton v Law SocietyWLR [1994] 1 WLR 512
Bijl v General Medical Council [2002] Lloyds Rep Med 60
Carroll v Council for Professions Supplementary to Medicine [2002] Lloyds Rep Med 71
Docherty v Law Society of Scotland 1968 SLT 133
Evans v General Medical Council, unreported, Privy Council Appeal no 40 of 1984
Finegan v General Medical CouncilWLR [1987] 1 WLR 121
Ghosh v General Medical CouncilWLR [2001] 1 WLR 1915
Gupta v General Medical CouncilWLR [2002] 1 WLR 1691
McColl v Law Society of Scotland 1987 SLT 524
Preiss v General Dental CouncilWLR [2001] 1 WLR 1926
Sharp v Law Society of Scotland 1984 SLT 313
Textbook referred to:
Smith and Barton, Procedures and Decisions of the Scottish Solicitors' Disciplinary Tribunal p 49
The cause called before the Second Division, comprising the Lord Justice Clerk (Gill), Lord MacLean and Lord Caplan for a hearing on the summar roll.
At advising, on 12 February 2002, the opinion of the court was delivered by the Lord Justice Clerk.
Opinion Of The Court
[1] The petitioners are solicitors. They appeal by way of petition against a decision of the Scottish Solicitors' Discipline Tribunal (the Tribunal) dated 5 September 2000. The respondents are the Council of the Law Society of Scotland.
[2] On 29 March 1999 the respondents made a complaint to the Tribunal of numerous charges of professional misconduct against the petitioners.
[3] The Tribunal held a hearing on 4 and 5 September 2000. The first and second petitioners were each represented by a solicitor. The third petitioner appeared on his own behalf. The parties adjusted pleadings and made up a record. Each of the petitioners entered into a joint minute with the respondents in which he admitted much of the factual material in the complaint. The respondents led evidence. The first and second petitioners gave evidence on their own behalf, but the third petitioner did not.
[4] The petitioners admitted most of the charges. In the case of the first and second petitioners there were significant questions of fact regarding an alleged breach of the Conflict of Interest Rules and an allegation of misappropriations in name of fees from the funds of a client company, Robbie Fowler Sports Promotions Ltd (referred to as Fowler Ltd). Otherwise, the main questions in the case concerned the degree of gravity of the petitioners' actings and the penalty that was appropriate in each case.
[5] The decision of the Tribunal was in the form of findings in fact; findings on the question of professional misconduct in relation to each petitioner, the order made in the light of those findings, and a note setting out the Tribunal's reasons for its decision.
[6] In view of the seriousness of this case, we quote the findings of misconduct in full. “6. Having considered the foregoing circumstances, the Tribunal make the following findings of professional misconduct against the particular Respondents—(1) Mr McMahon and Mr McFadyen in regard to the following breaches of the Solicitors (Scotland) Accounts Rules 1995, 1996 and 1997—(a) Rule 4(1) of the 1995 Rules in respect of the shortage of funds in the client bank account as at 29th February 1996. (b) Rule 4(1) of the 1996 Rules in respect of the shortages of funds in the client bank account as at 30th September 1996 and other occasions in or about that date, and as at 28th February and 30th May 1997. (c) Rule 4(1) of the 1997 Rules in respect of the shortage of funds in the client bank account as at 31st July 1998. (d) Rule 6(1)(a) of the 1995 and 1997 Rules in respect of their failure to obtain written authority to transfer funds from one client of the firm to another. (e) Rule 6(1)(d) of the 1995, 1996 and 1997 Rules in respect of their failure to render accounts to clients in respect of fees received by the firm. (f) Rule 6(3) of the 1996 and 1997 Rules in respect of their failure to specify on cheques drawn in favour of a bank or building society the name or the account number of the person whose account was to be credited. (g) Rule 7(g) of the 1996 Rules in respect of their failure to narrate in the client ledger—the payment of a deposit, the value of another property involved in the transaction, and other outlays. (h) Rule 12(1) of the 1995, 1996 and 1997 Rules in respect of their failure to ensure adequate narrative of entries and generally to keep properly written up records. (i) Rule 12(3) of the 1995 and 1996 Rules in respect of their failure to ensure that entries for clients were properly recorded in accordance with that Rule. (j) Rule 12(4) of the 1995 Rules in respect of their failure to keep properly written up books so as to balance the firm's books monthly. (k) Rule 13 of the 1996 Rules in respect of their failure to carry out a proper reconciliation of the client bank account. (1) Rule 14 of the 1996 Rules in respect of their failure to carry out a proper reconciliation of funds invested on behalf of clients. (m) Rule 15 of the 1997 Rules by their failure to invest funds lodged in the firm's bank account on behalf of clients in a separate interest bearing client account. (n) Rule 16 of the 1996 and 1997 Rules by their failure to comply with the Money Laundering Regulations. (2) Mr McMahon and Mr McFadyen in respect of their failure to inform Fowler Ltd of their intromissions with the funds received for that company and the position regarding the earning of interest on said funds. (3) Mr McMahon in respect of his failure to stamp a Disposition and to record the Disposition and Standard Security timeously. (4) Mr McFadyen in respect of his failure to stamp a Disposition and to record the Disposition and Standard Security timeously. (5) Mr Rew in regard to the following breaches of the Solicitors (Scotland) Accounts Rules 1997 (a) Rule 4(1) in respect of the shortage of funds in the client bank account as at 3rd June and 31st July 1999. (b) Rule 6(1)(d) in respect of his failure to render accounts to clients in four separate matters where fees had been taken by him. (c) Rule 6(1) by reason of withdrawing...
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